3 .  %^  .o^. 

^  PRINCETON,  N.  J.  *^ 

Presented   by_S7r?  / J^ \  v \  S  ,t->(SC'i~V?(S-  .Go>ro,ro 
Division  ....Uw*t ' 


SABBATH  LAWS 


IN  THE 


UNITED  STATES. 


By  R.  C  WYLIE,  D.  D. 


With  an  introduction  by  the 
REV.    S.    F.    SCOVEL,    D.    D\ 


Office  of 

THE  NATIONAL  REFORM  ASSOCIATION, 

209  Ninth  St.,  Pittsburgh,  Pa. 

19  0  5 


COPYRIGHT,  1905, 

BY 

RICHARD  CAMERON  WYLIE,  D.  D. 


INTRODUCTION. 

It  has  been  a  matter  of  great  satisfaction  to  me  that  the 
author  of  this  compilation  and  analysis  of  the  Sabbath  Laws  in 
the  United  States  was  found  willing,  amid  the  pressing  cares  of  a 
city  pastorate,  to  undertake  the  task  of  preparing  the  work  now 
given  to  the  press.  In  these  introductory  words  1  must  be  con- 
find  to  such  considerations  as  may  go  to  prove  the  proposition 
that  this  book  is  worthy  the  attention  of  the  public,  and  of  the 
whole  public,  as  well  as  that  of  the  bench,  the  bar  and  the  pulpit. 

1.  It  is  unique  and  without  precedent,  so  far  as  I  know,  in 
its  comprehensiveness. 

2.  It  has  been  carefully  and  even  laboriously  prepared  with 
diligent  comparisons  of  legal  texts  and  discriminating  choice  of 
the  most  important  material  in  the  various  decisions  and  situa- 
tions. 

3.  It  is  of  equal  interest  to  men  of  all  shades  of  opinion  be- 
cause it  presents  the  maximum  of  facts  accompanied  with  only 
the  minimum  of  the  reasoning  which  belongs  to  the  pronounced 
views  of  the  respected  author  and  those  whom  he  represents.  It 
is,  in  this  respect,  not  much  more  than  a  ''catalogue  raisonne." 
Its  main  function  is  to  supply  much-needed  information  not 
otherwise  to  be  conveniently  found. 

4.  It  is  of  interest  to  every  citizen  thoughtful  enough  to 
desire  knowledge  of  that  which  underlies  our  civilization.  Noth- 
ing has  been  more  characteristic  of  our  institutions  from  the  be- 
ginning, and  nothing  has  attracted  more  concentrated  and  sus- 
tained attention  than  our  "American  Sabbath."  Books  of  ob- 
servation by  mere  excursionists  as  well  as  books  of  profound 
study  of  our  institutions  have  taken  notice  of  this  feature  of  our 


ii  INTRODUCTION. 

national  life.  It  is  just  now  .published,  for  example,  that  the 
day  of  rest  on  the  fleet  of  Commodore  Perry,  including  the  piping 
of  all  hands  to  divine  worship  and  the  exclusion  of  the  Japanese 
themselves  who  would  have  visited  the  ships  on  that  day,  made 
a  .profound  impression  on  that  wonderful  people  then  just  open- 
ing eyes  and  minds  to  Occidental  civilization. 

When  the  abrogation  of  the  slender  requirement  for  Sab- 
bath rest  was  under  discussion  in  France,  less  than  a  decade 
after  the  third  Republic  had  been  established,  a  Catholic  Deputy 
appealed  to  the  Chamber  to  remember  that  the  nations  whose 
commercial  competition  they  most  feared — the  United  States  be- 
ing one  of  them — were  the  Sabbath-keeping  nations.  It  has  not 
only  been  visible  in  its  results,  but  fundamental  in  its  implica- 
tions that  we  have  had  three  Sabbath-rest-securing  classes  of 
enactments,  Colonial,  Commonwealth  and  Federal.  It  has  been 
the  demonstration  of  our  character  as  a  Christian  nation,  and  has 
given  us  the  right  to  insist  upon  our  privilege  of  Sabbath  ob- 
servance by  sea  and  land  wherever  our  flag  floats. 

5.  This  book  shows  the  foundation  in  common  sentiment 
and  customs  and  in  common  law,  as  well  as  in  statute  law,  of  a 
civil  institution  which  has  had  a  controlling  influence  in  our 
whole  national  development.  It  is  not  too  much  to  say  that  our 
Sabbath  laws  were  introduced  in  the  period  of  our  highest  na- 
tional ideals,  and  have  been  operative  through  the  noblest  per- 
iods of  our  national  history.  Can  it  be  denied  by  any — even 
by  those  most  addicted  to  the  reproachful  terms,  "puritanical,'^ 
"blue  laws" — that  the  American  Sabbath  has  conserved  if  not 
created  the  national  character  on  its  best  side  by  law-abiding,, 
self-control  and  serious  view  of  the  citizen's  responsibilities? 
And  are  there  any  who  fail  to  perceive  tliat  our  need  of  more  of 
this  best  side  of  our  national  character; is  now  most  urgent,,  not 
to  say  distressing?  Does  anyone  doubt, that  neglect  of  these  laws 
and  the  partial  loss  of  the  seriousness.jwhich  is  the  condition  of 
free  institutions,  have  been  co-incideiit?  A -life  :  which ;  wjll  not 
cease  at  any  time,  wholly,-  its  eagerrpursuit  of  ga,in,  and  will  only 
yield  partially  in  order  to  pu,i^,};ire  pleasure,  must  necessarily-  faii; 
in  providing  the  elements  :0f  gteadiness  and  consideration,  of  high 
moral  ideas  and  vocations tiwhieh  arfeiiidispensable  torself-gov- 


INTRODUCTION  iif 

ernment.  Our  Sabbath  laws  are  largely  efificient  in  preserving 
for  us  what  remains  of  our  most  important  national  traits.  Faith- 
fully observed,  they  would  mightily  help  to  repair  our  losses. 

6.  This  book  must  appeal  with  great  force  to  the  consider- 
ation of  the  workingmen,  whether  as  individuals  or  in  their  or- 
ganizations. It  is  a  veritable  arsenal  for  them  in  urging  their 
most  reasonable  demands  concerning  the  conditions  of  labor — 
conditions  that  affect  our  whole  national  life  most  profoundly. 
Here  is  a  vast  army,  each  man  of  which  may  well  become  a  sol- 
dier in  the  cause  of  Sunday  rest.  Overstrained  brains  and  mus- 
cles and  fatigued  attention  in  such  exacting  employment  as  rail- 
roading, for  example,  are  foes  to  the  security  of  the  whole  com- 
munity as  well  as  that  of  the  individual  victims.  And  in  our  rail- 
roads alone  there  are  said  to  be  one  million  and  a  half  of  men 
(and  many  of  them  skilled  men  of  the  highest  class  and  charac- 
ter), forced  to  work  on  the  Sabbath.  The  tide  is  ever  rising  and 
sweeping  new  classes  of  men  into  employment  and  incidentally 
disturbing  more  people  with  temptations  to  spend  a  homeless, 
"wide-open"  Sabbath.  Sabbath  work  is  driving  conscientious 
men  out  of  some  occupations  where  conscience  is  much  needed, 
or  driving  such  men  into  guilty  compromises  which  must  end- 
disastrously  for  them. 

The  great  truth  has  never  been  disputed  which  was  thus 
formulated  years  ago  in  the  Geneva  Conference :  "The  laiv  of 
rest  for  all  is  the  condition  of  rest  for  any."  Note  the  force  of 
competition  in  the  matter  of  Sunday  excursions.  So  many  rail- 
road authorities  have  said:  "We  do  not  prefer  Sunday  excur- 
sions;" and  some  have  said :  "We  will  not. have  them,  they  are  no 
better  financially  than  morally."  And  yet,  while  there  are  not 
wanting  cheering  hopes  of  better  things,.almost  all  the  roads  are 
crying  out :  "We  must  because  the  others  do."  The  law  of  rest  for 
"all"  disobeyed,  destroys  the  hope  of  rest  for  "any."  Agitation 
in  other  countries  takes  up  the  question  at  this  poiait:and  Sunday 
laws  are  proposed  iui- France  and  Spain:  When  the  discussion 
above  mentioned,  took  place  in  France  .the  argument  was- ad- 
vanced: "You  have  been  carefully:  seeking  methods  to  shorten 
the  hours  .of  the  working  day,  Jand  yet rvon:  are  .proposing  to 
take  away  all  the  protection. :the  laborer.; Has  for. one-seventh  of 


iv  INTRODUCTION. 

his  whole  time."  Will  not  the  workingmen,  now  such  keen  stu- 
dents of  all  social  conditions,  see  the  "coign  of  vantage"  they 
have  in  pressing  the  argument  for  a  rest  day?  Here  the  whole 
people  are  with  them.  Here  is  an  oppression  at  which  they  may 
justly  rebel.  They  need  but  to  stand  solidly  by  their  real  friends 
in  this  matter  and  a  greater  relief  will  come  to  their  class,  as  a 
whole,  than  has  been  thought  possible,  save  by  a  few.  Physi- 
cal relief  alone,  coming  in  the  way  in  which  science  has  already 
shown  it  can  best  come,  i.  e.,  by  a  weekly  rest  equalizing  the  daily 
limitation  of  vital  force,  is  an  argument  no  man  can  withstand 
who  cares  for  the  well-being  of  his  fellowmen  or  the  progress  of 
society. 

7.  The  book  should  gain  the  attention  of  fathers  and 
mothers  and  all  who  properly  estimate  the  home  as  the  real 
matrix  of  every  advanced  civilization.  More  and  more  social 
science  bears  testimony  to  the  central  position  and  the  inex- 
pressibly important  relations  of  the  home.  Sociologists  consid- 
er it  an  epitome  of  all  social  life.  Philanthropists  claim  that  the 
dependent  classes  can  only  be  prophylactically  treated  through 
better  homes  and  the  penologists  concur  as  to  the  criminal 
class.  But  who  does  not  know  that  the  Sabbath  day  is  the  sanc- 
tuary of  home.  Sabbath  laws  make  it  possible  for  thousands 
and  beckon  toward  it  the  millions.  By  so  much  as  home  means 
all  that  is  best  and  brightest  for  men,  women  and  children,  by 
so  much  must  the  Sabbath  laws  be  valued  and  respected. 

8.  And  these  laws,  so  thoroughly  supported  where  they  ex- 
ist by  the  highest  judicial  decisions,  are  a  perpetual  plea  for  their 
own  enforcement.  Against  all  the  pretences  and  weaknesses  of 
accommodating  local  politics,  and  against  all  that  "tyranny  of 
the  executive"  which  nullifies  the  declarations  of  the 
legislatures  and  the  decisions  of  the  Courts,  the  laws 
themselves  are  the  most  effective  protest.  They  guard  such 
rights  to  rest,  to  home  joys,  to  intellectual  improvement,  to 
moral  uplift  and  to  religious  elevation  (surest  force  to  all  the 
rest),  that  simply  to  know  them  cannot  but  help  in  every  strug- 
gle to  enforce  them.  If  this  book  is  read  by  all  those  who  ought 
to  read  it,  the  majesty  of  the  law  would  be  more  easily  vindicated 
and  punished,  and  a  moral  indignation  would  not  be  wanting. 


INTRODUCTION.  v 

9.  And  when  defense  is  desired  against  the  common  objec- 
tion to  all  moral  legislation  that  such  laws  interfere  with  personal 
liberty  or  liberty  of  conscience,  all  that  is  necessary  is  to  find  in 
this  volume  what  these  laws  really  are,  what  end  they  are 
meant  to  subserve,  how  they  have  grown  out  from  our  deepest 
life  and  how  they  have  been  vindicated  at  the  very  point  of  this 
objection  by  the  eminent  authorities  here  cited.  The  contention 
has  been  met  in  every  conceivable  shape  and  our  Sabbath  laws 
have  been  judicially  held  to  be  perfectly  consistent  with  our 
bills  of  rights  and  with  every  foundation  of  personal  liberty  se- 
cured by  our  free  institutions.  Nothing  could  demonstrate  so 
fully  the  timeliness  and  importance  of  this  book  as  the  urging 
of  this  objection.  The  answer  given  therein  is  full  and  complete 
and  to  trace  and  collate  the  various  methods  of  its  expression  is 
a  sound  education  in  that  in  which  many  thousands  of  our  fel- 
low-citizens most  sorely  need  education,  viz.,  the  just  limitations 
of  personal  liberty. 

ID.  Moreover,  it  will  surprise  some  faint-hearted  friends  of 
a  true  rest  day  to  note  how  large  the  area  covered  by  the  laws 
which  conserve  it  really  is,  and  how  soundly  established  those 
laws  appear  to  be.  'Tf  the  foundations  be  destroyed,  what  can 
the  righteous  do?"  .  But  the  foundations  are  not  destroyed.  In 
this  volume  (as  also  in  the  like  brochure  on  the  Bible  in  the 
American  schools,- which  ought  to  be  read  far  more  widely)  Dr. 
Wylie  has  proved  that  we  remain  in  that  possession  which  is 
"nine  points  of  the  law.".  Could  the  demonstration  of  these  two 
treatises  touch  at  once  the  hearts  and  minds  of  all  the  classes  in 
all  our  country  which  ought  to  be  intensely  interested,  there 
would  arise  a  wave  of  earnest  sentiment  and  hopeful  endeavor 
which  would  go  far  to  vitalize  and  make  increasingly  efficient 
this  whole  beneficent  legislation.  The  situation  is  not  desperate, 
though  its  dangers  may  not  be  ignored.  Under  the  conditions 
of  the  revived  interest  which  this  book  ought  to  aid  largely  in 
creating,  the  retention,  improvement  and  enforcement  of  our 
Sabbath  laws  is  in  nowise  impossible.  Doubtless,  individual 
study  and  thought  and  consecration,  together  with  associated 
effort  of  all  kinds,  and  wise  and  patient  endeavor  are  needed ;  but 
they  will  appear  and  they  will  succeed. 


vi  INTRODUCTION. 

II.  Yet,  while  1  believe  , this  will  be,  we  must  not  forget 
what  may  be.  The  calamity  of  the  loss  of  these  laws  would 
be  far  greater  than  even  the  disrespect  and  disobedience  with 
which  they  are  now  treated.  And  they  cannot  always  be  dis- 
regarded without  being  either  so  modified  as  to  compromise 
their  value  or  being  entirely  abrogated.  Entering  the  World's 
Conference  on  the  Sabbath  question  held  some  years  ago  at 
Basel,  I  saw  and  heard  an  aged  Swiss  pastor,  who  with  imploring 
gesture  and  voice  uttered  the  prayer:  "O  Herr,  gieb  du  uns 
wieder  deinen  heiligen  tag."  Once  and  again  it  was  uttered  in  a 
passionate  fervor  of  supplication.  Already  we  begin  in  this 
favored  land  to  utter  the  petition,  which  would  be  a  despairing 
cr}'  if  uttered  to  any  other  than  God. 

But  what  shall  we  not  be  prompted  to  beg  if  still  farther 
loss  of  these  laws  themselves  shall  show  that  the  heart  of  the  peo- 
ple is  turned  away  from  the  truth,  and  that  the  initiative  of  the 
hostiles  (the  powerful  association  of  gain  and  pleasure),  together 
with  the  indifference  of  the  Christian  forces,  have  gained  the  vic- 
tory !  It  would  be  a  deplorable  condition.  According  to  the 
genius  of  our  race  we  would  go  from  the  top  to  the  bottom  and 
ius  of  our  race  we  will  go  from  the  top  to  the  bottom  and  the  lost 
the  lost  Sabbath  would  mean  more  immorality,  ungodliness,  andf 
anarchy  than  elsewhere. 

May  the  justly  founded  hope  to  which  this  book  leads  be  re- 
alized, and  the  dark  shadow  of  a  great  misfortune  and  the  deep- 
stain  of  a  national  sin  be  averted. 

Sylvester  F.  Scovel. 

\\'o(ister,  Ohio,  July  ],  1*^05.  ' 


■>i.  fj::: 


:-'}-\  .^■Ar.A     U'}V'^      !.'::.':•        /        Xjv/Ji;--:-.- ri;  ■;•     '.:t*.i-     .;..•.■. 'M.:!^:     \  \\,'.     '(; 

.■:■^:^.:ii::^      ■■■■■■'    '■'ti'i  bnt  :::.:'-vQS:  '■} 


CONTENTS. 


CHAPTER  I. 


History  of  Our  Sabbath  Laws. 
•Colonial    Legislation — The    English    Sabbath    Law — The    Edict    of 
Constantine — Variations  in   the   Sabbath   Laws   of  the  United 
States — The  States,  Classified   1 

CHAPTER  II. 

Legislation  Retaining  the  Principle  of  the  English  Law. 
Georgia — Indiana — North     Carolina — Rhode     Island — South     Caro- 
lina             5 

CHAPTER  III. 

Legislation   with    Strong    Prohibitory   Clauses   and    Few   Exceptions  to 
their  Application. 

Arkansas — Connecticut — Delaware — Florida — Iowa — Kansas — Maine 
— Maryland — Michigan — Missouri — North  Dakota — Ohio — Okla- 
homa— Pennsylvania — South  Dakota — Tennessee — Utah   28 

CHAPTER  IV. 

Legislation  Weakened  by  Numerous  Exceptions. 
Alabama — Kentucky — Louisiana — Massachusetts — Minnesota — Mis- 
sissippi— New  Jersey — New  York — Texas — Vermont — Virginia — 
West  Virginia — Wisconsin — Wyoming.    Porto  Rico    89 

CHAPTER  V. 

States  whose  Sabbath  Laws  are  Inherently  Weak. 
•Colorado — Illinois — Montana — Nebraska — Nevada— New  Hampshire 

— New  Mexico — Oregon — Washington    145 

CHAPTER  VI. 

No  Sabbath   Laws  in  Two  States  and  One  Territory. 
Arizona — California — Idaho    166 


viii  CONTENTS. 

CHAPTER  VII. 

The  General  Government  and  the  Sabbath. 
Alaska — Indian  Territory — Departments  of  the  Government — Opin- 
ions of  the  Courts  of  the  United  States   175 

CHAPTER  VIII. 

The  Five-Fold  Basis  For  Sabbath  Laws. 
1. — They  Invade  No  Constitutional   Right.    2. — They   Protect  Hu- 
man Rights.    3. — They  are  Police  Regulations.    4. — They  Pro- 
tect a  Civil  Institution.    5. — They  Rest  Upon  Divine  Authority  196 

CHAPTER  IX. 

The   Ultimate  Ground  of   Sabbath    Laws 
Conflicting  Opinions — The  Sabbath  Before  Moses — Moses  and  the 
Fourth  Commandment — Paul  and  the  Sabbath — Christ  and  the 
Sabbath — Permanency  of  the  Sabbath — Conclusions   218 


CHAPTER   I. 

HISTORY  OF  OUR  SABBATH  LAWS. 


The  first  legislation  within  the  territory  now  occupied  by  the 
United  States  was  by  the  Assembly  of  Virginia  in  1619.  It  con- 
(tained  a  provision  with  respect  to  the  proper  observance  of  the 
Sabbath. 

In  the  Plymouth  Colony,  the  Massachusetts  Bay  Colony 
and  some  others  no  Sabbath  laws  were  enacted  for  a  number  of 
years  after  their  settlement,  the  common  law  of  England  on  this 
vmatter  being  considered  sufficient. 

Gradually  however  it  became  evident  that  in  this  as  well  as 
•in  many  other  matters,  it  was  the  better  plan  to  embody  in 
statutory  enactments  the  principles  of  the  common  law  in  such  a 
iorm  as  to  meet  the  requirements  of  local  conditions.  Sabbath 
laws  were  therefore  placed  at  an  early  date  on  the  statute  books 
of  all  the  Colonies.  It  is  significant  that  these  laws  grew  out  o^ 
the  common  or  unwritten  law,  and  were  not  forced  upon  the 
•Colonies  by  any  extraneous  power  either  civil  or  eccleciastical. 

At  the  time  of  the  outbreak  of  the  Revolutionary  War  the 
law  known  as  the  29th.  Char-les  II.  Chapter  VII.,  enacted  in 
'1^6,  was  the  Sabbath  law  in  force  in  all  the  American  Colonies. 
■In  legal  circles  it  .is  regarded  as  the  immediate  historical  antece- 
•dent  of  all  our  present  Sabbath  legislation.  The  study  of  this 
legislation  should  be  introduced  by  an  investigation  of  the  Sab- 
"bath  law  of  Charles  II.  Its  principal  clauses  are  herewith  pre- 
sented. 

"I.  (1)  For  the  better  observance  aad  keeping  holy  the  Lord's  day, 
•commonly  called  Sunday:  (2)  be  It  enacted  by  the  King's  most  excel- 
lent majesty,  by  and  with  the  advice'  and  consent  of  the  lords,  spiritual 
and  temporal,  and  of  the  Commons,  in  this    present    Parliament    as- 


2  HISTORY  OF  OUR  SABBATH  LAWS. 

sembled,  and  by  the  authority  of  the  same,  That  all  the  laws  eaacted 
and  In  force  concerning  the  observation  of  the  Lord's  day,  and  repair- 
ing to  the  church  thereon,  be  carefully  put  in  execution;  (3)  and  that 
all  and  every  person  and  persons  whatsoever,  shall  every  Lord's  day 
apply  themselves  to  the  observation  of  the  same,  by  exercising  them- 
selves thereon  in  the  duties  of  piety  and  true  religion,  paiblicly  and  priv- 
ately; (4)  and  that  no  tradesman,  artificer,  workman,  labourer, 
or  other  person  whatsoever,  shall  do  or  exercise  any  worldly 
labour,  business  or  work  of  their  ordinary  callings,  upon  the 
Lord's  day,  or  any  part  thereof  (works  of  necessity  and  charity  only 
excepted;  (5)  and  that  every  person  being  of  the  age  of  fourteen  years 
or  upwards,  offending  in  the  premises,  shall,  for  every  such  offense, 
forfeit  the  sum  of  five  shillings;  (6)  and  that  no  person  or  persons 
whatsoever,  shall  publicly  cry,  show  forth,  or  expose  to  sale,  any  wares, 
merchandise,  fruit,  herbs,  goods,  or  chattels  whatsoever,  upon  the 
Lord's  day,  or  any  part  thereof,  upon  pain  that  every  person  so  offend- 
ing shall  forfeit  the  same  goods  so  cried  or  showed  forth,  or  exposed 
to  sale. 

"IL  And  it  is  further  enacted.  That  no  drover,  horse-courser,  wag- 
oner, butcher,  higgler,  they  or  any  of  their  servants,  shall  travel  or 
come  into  his  or  their  inn  or  lodging  upon  the  Lord's  day  or  any  part 
thereof,  upon  pain  that  each  and  every  such  offender-  shall  forfeit 
twenty  shillings  for  every  such  offense;  (2)  and  that  no  person  or  per- 
sons shall  use,  employ,  or  travel  upon  the  Lord's  day  with  any  boat, 
wherry,  lighter  or  barge,  except  it  be  on  extraordinary  occasion,  to 
be  allowed  by  some  justice  of  the  peace  of  the  county,  or  some  head- 
officer,  or  some  justice  of  the  peace  of  the  city,  borough,  or  town  cor- 
porate, where  the  fact  shall  be  committed;  (3)  upon  pain  that  every 
person  so  offending  shall  forfeit  and  lose  the  sum  of  five  shillings  f&r 
every  such  offense 

"III.  Provided,  that  nothing  in  this  act  contained  shall  extend  to 
the  prohibiting  of  dressing  meats  in  families,  or  dressing  or  selling  of 
meat  in  inns,  cook-shops,  victualing  houses,  for  such  as  otherwise  iian 
not  be  provided,  nor  to  the  crying  or  selling  of  milk  before  nine  of  tie 
clock  in  the  morning  or  after  four  of  the  clock  in  the  afternoon."  .... 

"VI.  Provided  also.  That  no  person  or  persons' upon  the  Lord's 
day  shall  serve  or  execute,  or  cause  to  be  served  or  executed,  any  writ, 
process,  warrant,  order,  judgment  or  decree  (except  in  cases  of  treason, 
felony  or  breach  of  the  peace)  but  that  the  service  of  every  such  writ, 
process,  warrent,  order,  judgment  or  decree,  shall  be  void  to  all  in- 
tents and  purposes  whatsoever;  (2)  and  the  person  or  persons  so  serv- 
ing or  executing  the  same,  shall  be  as  liable  to  the  suit  of  the  party 
grieved,  and  to  answer  damages  to  him  for  doing  thereof,  as  if  he  or 
they  had  done  the  same  without  any  writ, -process,  warrant,  order,  judg- 
ment or  decree  at^  all."  (S1»tutes  at  Large,  vol.  VIII.,  Cap.  VIL,  pp. 
412-14,  1763).  -.  i    ' 


HISTORY  OF  OUR  SABBATH  LAWS.  5 

This  with  a  few  supplementary  sections  is  still  the  Sabbath 
law  of  England. 

Legislation  for  the  protection  of  the  first  day  of  the  week  as 
a  day  of  rest  may  be  traced  back,  through  the  history  of  the 
various  nations  into  which  the  Roman  Empire  was  divided,  to  the 
edict  of  Constantine,  issued  in  the  year  321  A.  D.,  which  is  often 
called  the  first  "Sunday  law."  One  very  important  point  of 
dilTerence  is  to  be  noted  however  between  English  and  American 
legislation  and  legislation  in  Continental  Europe.  In  the  latter 
there  is  but  seldom  any  reference  to  a  divine  warrant  for  Sabbath; 
laws,  while  Sabbatli  laws  in  England,  especially  from  the  Refor- 
mation period,  and  in  America  from  the  planting  of  the  first  Colo- 
nies, have  been  based  upon  the  law  of  God.  From  this  it  follows- 
that  in  our  country  no  other  day  than  the  first  day  of  the  week  is- 
regarded  as  possessing  a  sacred  character.  We  have  a  few  holi- 
days, but  no  other  holy  day  than  the  Lord's  day.  It  follows 
likewise  that  the  day  thus  recognized  among  us  as  holy  and 
protected  by  law  from  desecration  is  a  vastly  dififerent  thing  fron-i 
a  "Continental  Sunday." 

In  a  few  of  our  States  Sabbath  laws  are  still  modeled  after 
the  act  of  Charles  II.  in  forliidding  "worldly  labor  or  business  or 
work,"  in  one's  ordinary  calling  only.  It  was  soon  perceived  in. 
the  most  of  the  States  that  such  a  prohibition  was  wholly  in- 
adequate, and  wrought  injustice.  If  two  persons,  for  example,, 
are  engaged  in  the  same  worldly  labor,  should  it  be  the  ordinary- 
calling  of  the  one  and  not  of  the  other,  the  first  is  a  violator  of 
the  law  and  the  second  is  not.  At  an  early  period  therefore  irn 
nearly  all  the  States  these  words,  "ordinary  calling,"  were  omitted 
and  the  prohibition  made  to  extend  to  all  worldly  labor,  business 
and  work,  whether  of  one's  ordinary  calling  or  not. 

In  more  recent  years  there  has  been  a  marked  and  growing; 
tendency  to  depart  from  the  former  strictness  of  Sabbath  legisla- 
tion. In  some  States  there  has  developed  a  pronounced  an- 
tagonism to  all  laws  protecting  the  first  day  of  the  week  except 
such  as  would  make  it  a  mere  holiday.  A  struggle  is  therefore 
in  progress  throughout  our  country  between  the  friends  and  foesi 
of  Sabbath  laws.  EtTorts  are  made  in  State  legislatures  to 
secure  the  modification  or  repeal  of  these  laws.  Efforts  are  like- 
wise made  in  civil  courts  to  secure  judicial  opinions  giving  them 
a  liberal  interpretation  or  even  declaring  them  unconstitutional. 


^  HISTORY  OF  OUR  SABBATH  LA  WS. 

The  changes  brought'  about  in  our  Sabbath  laws  in  the  ways 
thus  indicated  have  resulted  in  the  division  of  our  States  into  five 
distinct  classes:    (i)  Those  in  which  the  law  is  still  patterned 

-after  the  act  of    Charles  II.     (2)    Those    that    have    adopted  a 
general  prohibitory  statute  with  few  exceptions  to  its  application. 

'  (3)    Those    with  laws    containing    general    prohibitory  clauses 
weakened  by  numerous  exceptions.     (4)  Those  with  laws  con- 

i  taining  prohibitory  clauses  inherently  weak,  their  scope  being 

.  limited.     (5)  Those  that  have  no  Sabbath  laws. 

In  this  discussion  the  States  will  be  classified  according  to 
this  plan.  The  Sabbath  law  of  each  State  will  be  given  in  full 
according  to  the  latest  code.  The  figures  on  the  right  of  the 
names  of  the  States  indicate,  not  the  year  of  the  enactment  of 
the  law,  but  the  year  of  the  publication  of  the  code  from  which 
the  law  is  quoted.  The  law  will  be  -followed  by  extracts  from  the 
■principal   judicial    opinions   upholding   its   constitutionality   and 

...giving  its  proper  interpretation. 

It  is  believed  that  such  an  investigation  will  answer  many 
questions  raised  concerning  our  Sabbath  laws,  remove  much 
prejudice  against  them,  and  multiply  the  forces  arrayed  in  their 

'defense. 


CHAPTER   11. 

LEGISLATION  RETAINLXG  THE  PRINCIPLE  OF  THE 
ENGLISH  LAW. 

The  States  confining  the  prohibition  of  "worldly  labor  or 
business  or  work"  on  the  Lord's  day  to  occupations  of  one's 
"ordinary  calling"  are  not  numerous.  It  was  doubtless  per- 
ceived at  an  early  period  that  the  prohibition  in  this  form  is  in- 
adequate and  inequitable.  Laws  with  this  limiting  clause  how- 
ever are  not  as  weak  as  they  might  appear  to  be.  Many  things 
not  included  in  labor,  business  or  w^ork  can  be  wholly  prohibited 
in  perfect  harmony  with  this  clause.  It  will  be  found  that  the 
law  in  each  of  the  States  of  this  class  is  quite  strong  in  some 
other  sections  designed  to  suppress  many  of  the  most  objection- 
able forms  of  Sabbath  desecration. 

GEORGIA.     (1895). 

Article  6  of  the  Tenth  Division  of  the  Penal  Code  of  Georgia 
relates  to  keeping  open  dppling-houses  on  the  Sabbath.  Article 
13  of  the  same  division  contains  the  general  Sabbath  law.  The 
important  sections  are  the  following : 

"390.  (4535).  Any  person  who  shall  be  guilty  of  open  lewdness, 
or  any  notorious  act  of  public  indecency,  tending  to  debauch  the  mor- 
als, or  of  keeping  open  tippling-houses  on  the  Sabbath  day,  or  Sabbath 
night,  shall  be  guilty  of  a  misdemeanor."     (Vol.  III.  p.  119). 

"420.  (4578).  If  any  freight  train,  excursion  train  or  other  train 
than  the  regular  trains  run  for  the  carrying  of  mails  or  passengers  shall 
be  run  on  any  railroad  in  this  State  on  the  Sabbath  day,  the  superin- 
tendent of  transportation  of  such  railroad  company,  or  the  officer  hav- 
ing charge  of  the  business  of  that  department  of  the  railroad,  shall  be 
liable  to  indictment  in  each  County-  through  which  such  train  shall 
pass,  and  shall  be  punished  as  for  a  misdemeanor. 

"The  foregoing  provision  shall  not  extend  to — 


^  GEORGIA. 

"1.  A  train  which  has  one  or  more  cars  loaded  with  live  stock, 
:and  which  is  delayed  beyond  schedule  time.  Such  train  shall  not  be  re- 
quired to  lay  over  on  the  line  -of  road  during  Sunday,  but  may  run  on 
to  the  point  where,  by  due  course  of  shipment  or  consignment,  the  next 
stock  pen  on  the  route  may  be,  where  said  animals  may  be  fed  and 
^watered,  according  to  the  facilities  usually  offered  for  such  transpor- 
Ttation. 

"2.  A  freight  train  running  over  a  road  on  Saturday  night,  if 
the  time  of  its  arrival  at  destination  according  to  the  schedule 'by  which 
it  started  on  the  trip,  be  not  later  than  eight  o'clock  Sunday  morning. 

"3.  Special  fruit,  melon  and  vegetable  trains,  the  cars  of  which 
contain  no  other  freight  except  perishable  fruits,  melons,  vegetables, 
fresh  fish,  oysters,  fresh  meats,  live  stock,  and  other  perishable  goods 
of  a  like  character,  and  which  trains  shall  be  loaded  and  leave  the 
station  from  which  they  start  in  this  State  before  the  hour  of  midnight 
on  Saturday  night  previous  to  the  Sunday  on  which  they  are  operated. 

"No  company  shall  be  compelled  to  run  the  trains  mentioned  in 
this  paragraph,  and  all  freight-trains  or  cars  thus  loaded  and  coming 
"into  this  State  may  run  to  any  point  of  destination  in  tliis  State  or 
-continue  their  run  through  the  State  on  Sunday. 

"422.  (4579).  Any  person  who  shall  pursue  his  business  or  the 
■work  of  his  ordinary  calling  on  the  Lord's  day,  works  of  necessity 
and    charity    only    excepted,    shall    be    guilty    of    a    misdemeanor. 

"423.  (4580).  Any  person  who  shall  hunt  any  kind  of  game  with 
gun  or  dogs  or  both,  on  the  Sabbath  day,  shall  be  guilty  of  a  misde- 
jneanor. 

"424.  (4581).  Any  person  who  shall  bathe  in  a  stream  or  pond  of 
■wuter  on  the  Sabbath  day,  in  view  of  a  road  or  passway,  leading  to  or 
from  a  house  of  religious  worship,  shall  be  guilty  of  a  misdemeanor." 
<Vol.  III.  pp.   127-129). 

Sabbath  desecration  is  declared  by  these  sections  to  be  a  misde- 
meanor.    The  following  is  the  penalty  for  all  misdemeanors. 

"1039.  Every  crime  declared  to  be  a  misdemeanor  is  punishable 
by  a  fine  not  to  exceed  one  thousand  dollars,  imprisonment  not  to  ex- 
ceed six  months,  to  work  in  the  chain-gang  on  the  public  works,  or  on 
:3uch  other  works  as  the  County  authorities  may  employ  the  chain-gang, 
•not  to  exceed  twelve  months,  and  any  one  or  more  of  these  punish- 
ments may  be  ordered  in  the  discretion  of  the  judge."  (Vol.  III.  p. 
:292). 

Numerous  cases  have  come  before  the  Supreme  Court  of 
the  State  requiring  opinions  both  as  to  the  constitutionahty  and 
"the  proper  interpretation  of  the  law. 

In  Neal  and  others  v.  Crew,  in  a  few  vigorous  sentences,  the 
"basis  of  the  law  in  the  divine  will  and  its  value  to  society  were 
maintained.     The  Court  said  : 

"All  agree  that  to  the  well-being  of  society,   stated    intervals  of 


GEORGIA.  7 

rest  are  absolutely  necessary.  We  shouW  not  tempt  mankind  therefore, 
to  yield  obedience  to  municipal  arrangments  which  overlook  and  dis- 
regard the  moral  law  of  the  great  Jehovah,  who,  from  the  smoking 
top  of  Mount  Sinai  proclaimed  to  all  the  world,  'Remember  the  Sabbath 
day  to  keep  it  holy;  in  it  thou  shalt  not  do  any  work."  (12  Ga.  93, 
1852). 

In  the  case  of  Karvviscli  v.  the  Mayor  and  Council  of 
Atlanta,  in  which  Karvvisch  had  been  convicted  before  the  Mayor 
and  Council  of  Atlanta  for  keeping  open  his  store  on  the  Sab- 
bath, the  Supreme  Court,  to  which  the  case  came  on  the  refusal 
of  the  Court  below  to  grant  a  certiorari,  declared  as  follows  : 

"The  law  fixes  the  day  recognized  as  the  Sabbath  day  all  over 
Christendom,  and  that  day,  by  Divine  injunction,  is  to  be  kept  holy— 
•on  it  thou  Shalt  do  no  work.'  The  Christian  Sabbath  is  a  civil  insti- 
tution, older  than  our  government,  and  respected  as  a  day  of  rest  by 
our  constitution,  and  the  regulation  of  its  observance  as  a  civil  institu- 
tion has  always  been  considered  to  be,  and  Is,  within  the  power  of  the 
Legislature  as  much  as  any  regulations  and  laws,  having  for  their  ob- 
ject the  preservation  of  good  morals  and  the  peace  and  good  order  of 
society."     (44  Ga.  205,  1871). 

In  Bass  v.  Irwin  it  was  held  that  ihe  act  of  receiving  a  ver- 
dict on  the  Sabbath  is  illegal.     The  Court  said : 

"In  every  form, — by  all  the  different  authorities  of  this  State — by 
its  organic  law — its  civil  and  criminal  code,  and  by  every  judicial  de- 
cision upon  the  question,  the  Sabbath  day  is  regarded  as  the  Lord's 
day,  and  it  is  protected  from  violation  by  so  many  guards  that  the 
Courts  should  not  be  allowed  to  invade  its  sanctity,  and  in  so  doing 
make  a  record  to  be  read  by  all  men  in  all  time."    (49  Ga.  436,  1873). 

In  the  case  of  Salter  et  al.  v.  Smith  the  Supreme  Court 
sustained  the  act  of  taking  bail  and  discharging  a  prisoner  on  the 
Lord's   day,   as   not  a    violation    of    the    law.     The    followino- 

language  was  used : 

"Independently  of  the  moral  obligation  resting  upon  all  men  to 
obey  the  law  of  the  Lord,  and  to  observe,  by  abstaining  from  all  secu- 
lar business,  the  day  set  apart  for  His  worship  throughout  Christen- 
dom, the  rest  of  one  day  in  seven  from  all  physical  and  mental  labor, 
is  a  great  conservative,  refreshing,  invigorating  means,  designed  by 
Almighty  wisdom  for  the  preservation  of  health  and  the  recreation  of 
our  mental  and  bodily  faculties."    (55  Ga.  244,  1875). 

In  the  case  of  Weldon  et    al.    v.    Colquitt,    Governor,    the 

Supreme  Court  said  : 

"In  Georgia,  as  in  England,  Sunday  is  a  holy  day.  The  Code  de- 
nominates it  the  Lord's  day,  and  as  the  Lord's  day  all  Courts  and  mag- 
istrates are  to  consider  it.  This  they  are  to  do  as  a  matter  of  mere 
law,  irrespective  ot  religious  obligation  and  duty.    On  it  there  can  be 


8  GEORGIA. 

performed  no  judicial  labor  which  does  not  come  fairly  within  the  de- 
scription of  works  of  necessity  or  charity.  Sunday  is  no  day  for  trial 
and  judgment,  being  by  the  common  law,  dies  non  juridicus.  The 
mere  act  of  receiving  a  verdict  on  Sunday,  which  the  jury  are  ready  to 
deliver,  is  illegal.  49  Ga.,  436.  The  current  of  decision  by  this  Court 
has  been  pro-Sabbatic  in  full  measure,  and  with  that  current  runs,  we 
think  the  true  law,  as  well  as  the  general  moral  sentiment  of  the  peo- 
ple of  the  State.  Courts,  high  or  low,  are  no  less  bound  to  abstain  from 
ordinary  labor  on  the  Sabbath  day,  t^an  are  private  individuals."  (62 
Ga.  449,   1879). 

In  Henningtoii  v.  the  State  the  constitutionaHty  of  section 
4578  of  the  law,  making  it  a  misdemeanor  to  run  a  freight  train 
upon  any  railroad  in  the  State  on  the  Sabbath  day  was  upheld. 
The  plea  of  the  plaintift  was  that  the  section  in  question  is  re- 
pugnant to  article  i,  section  8,  of  the  constitution  of  the  United 
States  which  gives  to  Congress  the  exclusive  right  to  regulate 
interstate  commerce.  The  Supreme  Court  held  that  this  section 
together  with  the  remainder  of  the  Sabbath  law  is  a  police  regula- 
tion and  that  its  effect  on  interstate  commerce  is  only  incidental^ 
such  as  any  broad  and  comprehensive  police  regulation  may 
have.  The  case  was  appealed  to  the  Supreme  Court  of  the 
United  States  which  Court  upheld  this  opinion.  (See  Chapter 
VII,  p.  186.)      The  Supreme  Court  of  Georgia  said  : 

"At  no  instant  since  her  independence  was  declared  has  Georgia 
been  without  such  a  law  on  her  statute  book.  .  .  .There  can  be  no  well 
founded  doubt  of  its  being  a  police  regulation,  considering  it  merely  as 
ordaining  the  cessation  of  ordinary  labor  and  business  during  one  day 
in  every  week;  for  the  frequent  and  total  suspension  of  the  toils,  cares 
and  strain  of  mind  or  muscle  incident  to  pursuing  an  oc^'ipation  or  com- 
mon employment,  is  beneficial  to  every  individual,  and  incidentally  to 
the  community  at  large,  the  general  public.  Leisure  is  t\o  less  essential 
than  labor  to  the  well-being  of  man.  Short  intervals  of  leisure  at 
stated  periods  reduce  wear  and  tear,  promote  health,  fas'or  cleanliness, 
encourage  social  intercourse,  afford  opportunity  for  introspection  and 
retro~pection,  and  tend  in  a  high  degree  to  expand  the  thoughts  and 
sympathies  of  people,  enlarge  their  information,  and  elevate  their  mor- 
als. They  learn  how  to  be,  and  come  to  realize  that  being  is  quite  as 
important  as  doing. 

"Without  frequent  leisure,  the  process  of  forming  character  could 
only  be  begun;  it  could  never  advance  or  be  completed;  people  wouTS 
be  mere  machines  of  labor  or  business — nothing  more.  .  .  .  .That  which 
is  properly  made  a  civil  duty  by  statute  is  none  the  less  so  because  it 
is  also  a  real  or  supposed  religious  obligation;  nor  is  the  statute  vitiated, 
or  in  any  wise  weakened,  by  the  chance,  or  even  the  certainty,  that  in 
passing  it  the  legislative  mind  was  swayed  by  the  religious  rather  than 


GEORGIA.  9' 

by  the  civil  aspect  of  the  measure.  Doubtless  it  is  a  religious  duty  to 
pay  debts,  but  no  one  supposes  that  this  is  any  obstacle  to  its  being 
exacted  as  a  civil  duty.  With  few  exceptions,  the  same  may  be  said 
of  the  whole  catalogue  of  duties  specified  in  the  Ten  Commandments. 
Those  of  them  which  are  purely  and  exclusively  religious  in  their  na- 
ture, cannot  be  or  be  made  civil  duties,  but  all  the  rest  of  them  may  be, 
in  so  far  as  they  involve  conduct  as  distinguished  from  mere  opera- 
tions of  mind  or  states  of  the  affections.  Opinions  may  differ,  and  ther 
really  do  differ,  as  to  whether  abstaining  from  labor  on  Sunday  is  a 
religious  duty,  but  whether  it  is  or  not,  it  is  certain  that  the  legisla- 
ture of  Georgia  has  prescribed  it  as  a  civil  duty.  The  statute  can  fair- 
ly and  rationally  be  treated  as  a  legitimate  police  regulation,  and  thus 
treated,  it  is  a  valid  law."     (Hennington  v.  The  State  90  Ga.  396,  1892). 

In  the  same  year  (1892)  the  constitutionality  of  the  law 
against  hunting  on  the  Sabbath  was  tested,  on  the  ground  that 
it  interferes  with  the  right  to  worship  God  according  to  the 
dictates  of  conscience  and  attempts  to  punish  for  religious  opin- 
ions. Its  constitutionality  was  sustained.  (Gunn  v.  the  State, 
89  Ga.  341.) 

Various  devices  have  been  resorted  to  for  the  purpose  of 
evading  the  liquor  law.     The  following  are  examples: 

The  Albany  Glee  Club,  for  the  purpose  of  securing  liquors- 
on  the  Sabbath  adopted  the  following  resolutions : 

"Resolved,  that  this  club,  and  we  the  members  thereof,  knowing, 
that  it  is  in  strict  violation  of  the  city  as  well  as  the  State  laws  for  any 
dealer  in  spirituous  or  fermented  liquors  to  sell  on  the  Sabbath  day, 
and  not  wishing  to  violate  the  laws  in  any  part  or  sentence,  nor  to- 
cause  others  to  do  so,  and  knowing  that  every  laboring  man  or  others 
who  are  in  the  habit  of  taking  their  social  drinks  during  the  week, 
wants  and  needs  it  on  the  Sabbath, 

"Resolved,  That  in  order  to  comply  with  the  laws  in  every  particu- 
lar, we  agree  to  pay  the  sums  opposite  our  respective  names,  to  a 
treasurer  to  be  chosen  by  the  club,  on  or  before  the  Saturday  preceding^ 
each  Sabbath,  for  the  purpose  of  purchasing  the  liquor  necessary  for 
the  use  of  the  club  the  following  Sabbath." 

The  Supreme  Court  held  that  the  house  where  the  Albany 
Glee  Club  met  and  drank  on  Sabbath  was  a  tippling-house,  and 
that  the  owner  was  both  the  keeper  of  a  tippling-house  and  a 
retailer  of  spirituous  liquors.     (63  Ga.  318,  1879.) 

In  Hussey  v.  the  State  it  was  shown  that  a  sign  was  up  \n 
the  saloon  stating  that  the  bar  was  closed,  but  that  liquors  were 
served  in  another  room  used  as  a  restaurant.     The  Court  declared 

as  follows : 

"It  makes  no  difference  in  law  whether  the  place  be  called  a  bar 


lo  GEORGIA. 

room,  or  a  glee  club  resort,  or  a  parlor,  or  a  restaurant,  if  it  be  a  place 
where  liquor  is  retailed  and  tippled  on  the  Sabbath  day  with  a  door  to 
get  into  it  so  kept  that  any  body  -can  push  it  open  and  go  in  and  drink 
the  proprietor  of  it  is  guilty  of  keeping  open  a  tippling  house  on  Sunday. 
It  makes,  no  difference  if  the  drinking  be  done  standing  or  sitting — at  a 
"bar  or  around  a  table — it  is  tippling,  and  the  place  where  it  is  done  is 
a  tippling  house;  and  if  anybody  wishing  to  drink  can  have  access 
thereto — if  ingress  and  egress  be  free  to  all  comers — it  is  a  tippling 
liouse  kept  open  on  Sundays."     (69  Ga.  54,  1882). 

The  Sabbath  law  of  Georgia  as  sustained  and  defined  by  the 
Supreme  Court  of  the  State  is  thus  shown  to  be  a  very  efficient 
law.  Its  principal  weak  point  is  in  the  clause  limiting  the  pro- 
hibition as  to  labor,  business  and  work  to  acts  of  one's  ordinary 
•occupation.  Under  this  statute  it  is  held  that  a  note  given  on  the 
Lord's  day,  not  of  necessity  or  charity,  and  not  in  the  exercise  of 
■any  worldly  labor,  business  or  work  of  the  ordinary  calling  of 
the  parties  to  it.  is  not  prohibited  by  the  statute.  This  is  a 
-dangerous  clause  in  a  Sabbath  law  and  might  be  used  to  the  de- 
struction of  the  peace  and  order  of  the  day  of  rest.  In  other 
respects  the  law  is  admirable  and  the  penalties  sufficient.  The 
first  four  opinions  given  above  in  which  the  divine  basis  for  Sab- 
bath laws  is  set  forth  with  nuich  force  and  clearness  are  especially 
worthy  of  commendation. 

INDIANA.     (1901). 

Chapter  50  of  the  Code  of  Indiana  is  entitled  "Crimes." 
Article  5  of  this  Chapter  treats  of  crimes  "Against  Public 
Morals."     The    sections    relating    to    "Sabbath    Breaking"    are 

these : 

"2086.  Whoever,  being  over  fourteen  years  of  age,  is  found  on  the 
Urst  day  of  the  week,  commonly  called  Sunday,  rioting,  hunting,  fish- 
ing, quarreling,  at  common  labor,  or  engaged  in  his  usual  occupation^ 
(works  of  charity  and  necessity  only  excepted),  shall  be  fined  in  any 
sum  not  more  than  ten  nor  less  than  one  dollar;  but  nothing  herein 
contained  shall  be  construed  to  affect  such  as  conscientiously  observe 
the  seventh  day  of  the  week  as  the  Sabbath,  travelers,  families  remov- 
ing, keepers  of  toll-bridges  and  toll-gates,  and  ferrymen  acting  as  such. 

"2087.  It  shall  be  unlawful  for  any  person  or  persons,  to  engage  in 
playing  any  game  of  baseball  where  any  fee  is  charged,  or  where  any 
reward,  or  prize,  or  profit,  or  article  of  value  is  depending  upon  the 
result  of  such  game,  on  the  first  day  of  the  week  commonly  called  Sun- 
day, and  every  person  so  offending  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  shall  be  fined  in  any  sum  not  exceeding 
twenty-five  dollars."     (pp.  831,  832). 


INDIANA.  II 

"2098.  Whoever  shall  sell,  barter,  or  give  away  to  be  drunk  as  a 
beverage,  any  spirituous,  vinous,  malt  or  other  intoxicating  liquor, 
upon  Sunday,  the  Fourth  of  July,  the  first  of  January,  the  twenty-fifth 
of  December,  (commonly  called  Christmas  day),  Thanksgiving  day 
as  designated  by  the  governor  of  this  State  or  the  President  of  the 
United  States,  or  any  legal  holiday;  or  upon  the  day  of  any  election  in 
the  township,  town  or  city  where  the  same  may  be  holden;  or  between 
the  hours  of  eleven  o'clock  P.  M.  and  five  o'clock  A.  M.,— shall  be  fined 
in  any  sum  not  more  than  fifty  dollars  nor  less  than  ten  dollars  to 
which  may  be  added  imprisonment  in  the  county  jail  not  more  than 
sixty  days  nor  less  than  ten  days."     (p.  871).  , 

Processes  may  be  issued  on  the  first  day  of  the  week  whenever  it 
shall  appear  by  affidavit  that  the  object  of  such  process  would  be  de- 
feated by  delaying  to  another  day.     (Sec.  1454). 

Numerous  cases  have  come  before  the  Supreme  Court  of 
Indiana  involvinfi:  both  the  constitutionahty  and  the  proper  con- 
struction of  the  Sabbath  law. 

In  Vog-elsong  v.  the  State  an  elaborate  argument  against 
the  validity  of  the  law  was  presented  by  the  counsel  for  the  de- 
fense, but  the  Court,  instead  of  discussing  the  issues  raised,  de- 
clared that  "the  question  can  hardly  be  considered  an  open  one." 
{9  Ind.  112.  1857). 

In  the  above  case  the  indictment  was  for  selling  liquor  on 
the  Sabbath,  and  the  Court  held  that  the  sale  of  liquor  is  labor, 
and  when  liquor  selling  is  one's  usual  occupation  the  law  forbids 
It.  In  Thomasson  v.  the  State  the  indictment  was  the  same  as 
in  the  above  case.  But  the  Court  held  that  while  it  is  competent 
for  the  legislature  to  prohibit,  as  a  police  regulation,  the  sale  of 
liquor  on  Sunday,  it  is  doubtful  whether  it  has  the  power  to  enact 
a  law  compelling  the  observance  of  the  Sabbath.  The  gist  of 
the  argument  is  seen  in  the  following  sentences : 

"When  our  existing  government  was  created,  its  creators  deter- 
mined that  there  were  some  matters  in  which  the  majority  should  not 
■control  the  minority;  that  there  were  some  things  over  which  the  Leg- 
islature should  not  have  authorfty;  that  in  some  things  the  people 
should  not  be  within  the  power  of  the  Legislature.  Such  is  our  or- 
ganization of  government — our  Constitution.  One  of  the  subjects 
withdrawn  by  that  Constitution,  in  the  Bill  of  Rights,  from  legislative 
interference,  is  that  of  religion,  and  the  writer  has  no  hesitation  in 
saying,  highly  as  he  individually  values  the  Sabba-th,  tkat  if  the  Sun- 
day law  is  upon  the  statute  book  for  the  protection  or  enforcement 
■of  the  observance  of  that  day,  as  an  institution  of  the  Christian  relig- 
ion, it  cannot  be  upheld;  no  more  than  could  a  law  forbidding  labor  on 
Saturday,  the  Jewish     Sabbath,     or  on     any  and  all     other     days     of 


12  INDIANA. 

the  week,  which  may  be,  in  fulfillment  of  a  requirement  of  a  creed,, 
set  apart  for  religious  observance,  by  any  portion  of  our  citizens, 
whether  Christian,  Jewish,  Mohammedan,  or  Pagan.  It  is  not,  of 
course,  meant  here  to  trench  upon  the  laws  to  protect  meetings  of  those 
desiring  to  worship  from  disturbance,  on  all  days.  Can  the  Sunday 
law  be  maintained  as  a  mere  police  regulation,  without  reference  ta 
an  institution  of  religion?  Could  the  Legislature  enact  a  law  that  na 
man  should  labor  on  New  Year's  day?  The  Legislature  enacts  a  law 
that  no  man  shall  compel  his  children,  apprentices,  and  employees  to. 
labor  more  than  ten  hours  a  day,  and  it  may  be  well.  Such  a  law  may 
be  a  reasonable  regulation  of  labor  to  protect  the  weak  from  the  op- 
pression of  the  strong;  but  has  the  Legislature  ever  attempted  to  enact 
a  law,  that  the  father  or  employer  should  not  himself  labor  more  than 
ten  hours  a  day,  if  he  preferred  to  do  so? 

So,  perhaps,  the  Legisla'ture,  on  the  same  principle,  might  enact  a 
law  that  no  man  should  compel  those  under  him  to  labor  more  than 
six  days  in  a  week;  that  he  should  allow  one-seventh  of  the  days  for 
rest;  but  could  it  enact  that  no  individual  should  labor  for  himself  but 
six-sevenths  of  the  days?  We  express  no  fixed  opinion  on  the  point 
here,  as  the  case  does  not  require  it.  Dees  it  not  involve  the  patriarchal 
theory  of  government?     (15  Ind.  449,  1860). 

Again  in  1870,  in  Foltz  v.  the  State,  the  question  of  the 
constitutionality  of  the  law  was  considered  by  the  Supreme  Court 
of  the  State  and  an  affirmative  answer  given    (33  Ind.  215.) 

Once  more  in  1881  in  Johns  v.  the  State  the  constitution- 
ality of  the  law  was  attacked,  this  time  on  the  ground  that  it 
makes  an  exception  in  favor  of  those  who  observe  the  seventh 
day  of  the  week  as  the  Sabbath.  It  was  contended  that  this 
proviso  brings  the  law  into  conflict  with  that  section  of  the  bill 
of  rights  in  which  the  General  Assembly  is  forbidden  to  grant  to 
any  citizen,  or  to  any  class  of  citizens,  privileges  or  immunities, 
which,  upon  the  same  terms,  shall  not  belong  equally  to  all 
citizens.  But  the  Supreme  Court  held  that  "The  statute  in  ques- 
tion under  immediate  mention  does  not  grant  immunities  to  one 
class  of  citizens  which,  upon  the  same  terms,  shall  not  belong  tO' 
all."    (78  Ind.  332). 

Failing  to  break  down  the  law  by  having  it  declared  un- 
constitutional, its  enemies  have  industriously  sought  to  secure  a 
liberal  construction  of  the  clause  which  excepts  works  of  charity 
and  necessity.  A  few  of  the  leading  decisions  on  this  point  may 
be  studied  with  pro-fit.  The  first  to  be  considered  gives  to  the 
opponents  of  the  law  about  all  they  could  desire.  It  is  as  fol- 
lows : 


INDIANA.  13 

"In  the  United  States,  where  religion  can  be  neither  opposed  nor 
•supported  by  law,  and  where  Sunday,  under  the  law,  is  viewed  purely 
in  a  secular  light,  the  tendency  naturally  is  to  relax  the  restrictions 
of  the  Sunday  laws  in  all  things  which  do  not  interfere  with  the  rights 

of  others,  and  do  not  annoy  or  discomfort  the  public  generally 

There  is  a  difference  between  a  work  which  may  be  done  on  one  day 
as  well  as  another,  and  which  is  not  a  daily  need,  and  a  work  necessary 
to  supply  a  constant  daily  want.  There  is  no  necessity  for  working  in 
a  shop,  ploughing  a  field,  selling  from  a  store,  opening  an  office,  going 
to  exchange  or  mart  of  commerce,  or  working  at  any  common  labor 
or  usual  avocation  on  Sunday;  but  there  is  daily  necessity  for  putting 
a  house  in  order,  cooking  food,  taking  meals,  drinking  coffee  or  tea, 
smoking  a  cigar  by  those  who  have  acquired  the  habit,  or  continuing 
any  other  lawful  habit,  on  Sunday,  the  same  as  there  is  upon  a  week 
day;  and  whatsoever  is  necessary  and  proper  to  do  on  Sunday  to  sup- 
ply this  constant  daily  need,  is  a  work  of  necessity  within  the  fair 
meaning  of  the  law  under  consideration.  In  this  State  it  has  been  held 
that  the  manufacturing  malt  beer,  gathering  and  boiling  sugar-water 
to  prevent  its  waste,  receiving  the  verdict  of  a  jury  by  a  Court,  and 
gathering  the  fruits  of  the  earth  to  prevent  their  decay  and  taking 
them  to  the  market  place  on  Sunday,  are  works  of  necessity,  within  the 
meaning  of  the  present  act."  "Keeping  a  hotel  in  this  State  on  Sunday 
is  not  unlawful.  Keeping  a  hotel  on  Sunday,  in  the  same  way  that  it 
is  usually  kept  on  a  week  day,  is  not  unlawful.  It  follows  then,  that 
if  a  hotel  keeps  a  cigar  stand,  which  is  part  of  its  establishment,  from 
which  it  sells  cigars  to  its  guests,  boarders  and  customers  on  a  week 
day,  to  sell  cigars  from  the  same  stand  in  the  same  way  on  Sunday 
is  not  unlawful.  Indeed,  we  see  no  difference,  legally,  between  the  act 
of  selling  a  cigar  under  such  circumstances  and  the  act  of  furnishing 
a  cup  of  tea  or  coffee,  a  meal  of  victuals,  or  supplying  any  other  daily 
want,  to  a  customer  on  Sunday  for  pay."  (Carver  v.  The  State  69 
Ind.  61,  1879). 

This  loose  definition  of  the  term  "necessity,"  and  the  reason- 
ing by  which  it  was  supported  were  afterwards  controverted  by 
the  same  court.  This  was  done  in  the  case  of  Mueller  v.  the 
State.  (76  Ind.  310.  1881).  Mueller  was  on  trial  for  selling 
cigars  on  the  Sabbath.  Justice  Woods  who  delivered  the  opin- 
ion of  the  court  said : 

"Necessity  like  fraud,  is  incapable  of  definition  at  once  accurate 
and  sufficiently  comprehensive  to  accomplish  the  object  of  this  enact- 
ment. The  law,  however,  must  often  deal  with  the  indefinable.  The 
lawgiver's  work  is  to  make  the  law  in  such  general  or  specific  terms  as 
are  deemed  suitable  to  declare  his  purpose.    The  duty  of  the  Courts  is 

not  to  defeat,  but  to  discover  and  enforce,  the  legislative  design 

What  should  be  deemed  a  necessity,  the  law  itself  could  not  well  have 
been  made  to  say,  and  any  attempt  of  the  Courts  to  frame  a  definition 


14  INDIANA. 

of  general  application  would  be  more  likely  to  produce  confusion  than 
certainty.  The  question  in  each  case  must  be  decided  according  to  the 
circumstances,  and  is,  therefore  more  a  question  of  fact  than  of  law." 
He  then  says  that  much  of  the  confusion  upon  the  subject  has  arisen 
from  such  efforts  as  that  made  in  the  case  of  Carver  v.  the  State,  to 
give  an  accurate  definition.  After  quoting  from  that  decision  he  pro- 
ceeded to  demolish  it,  as  follows:  That  the  hotel  keeper  "may  not  keep 
open  a  stand,  bar  or  other  place,  for  the  purpose  of  general  sales  to 
resident  customers  or  boarders,  who,  like  other  citizens,  ought  to  an- 
ticipate and  furnish  a  supply  for  their  Sunday  wants,  seems  clear. 
There  should  be  no  privilege  allowed  the  hotel-keeper  of  selling  to  his 
boarders  and  resident  customers,  which  is  not  allowed  to  the  keeper  of 
a  boarding  house  or  restaurant,  or  to  other  classes  of  dealers."  As  tO' 
selling  cigars  to  those  who  have  acquired  the  smoking  habit,  he  said: 
"It  is  hardly  probable  that  the  law  makers  contemplated  that  the  crav- 
ings of  a  morbid  and  unnatural  appetite  should  be  deemed  to  create 
such  an  imperious  necessity  for  appeasement  as  that  the  general  re- 
quirement for  Sunday  observance  should  yield  to  it,  while  the  supply- 
ing of  the  ordinary  necessities  of  life,  like  food  and  clothing,  by  pur- 
chase and  sale  out  of  stores,  should  be  forbidden If  it  can  be  said 

by  the  Court  that  a  cigar  is  necessary  to  the  smoker,  it  is  no  less  cer- 
tainly known  that  a  drink  is,  in  the  same  sense,  needful  to  the  drinker. 
The  appetite  for  the  latter  is  not  weaker  than  the  demand  for  the  form- 
er.    The   law,    however,   specifically  forbids   the   sale   of      intoxicating 

liquors  on  Sunday The  rule  which  in  Carver  v.  the  State  supra 

is  declared  to  be  the  true  rule,  is  in  fact  a  rule  which  cannot  be  practic- 
ally applied  without  nullifying  the  law Under  the  rule  as  stated, 

any  lawful  purpose  may  be  accomplished  by  doing  on  Sunday  what.un- 
der  the  circumstances  was  necessary  to  achieve  it.  The  law,  however, 
makes  all  purposes  unlawful  in  so  far  as  they  require  common  labor  or 
the   pursuit   of  accustomed   employments   on    Sunday   except  works   of 

charity  or  necessity What  does  necessity,    as  used    in    this    law 

mean?  It  may  be  said,  as  has  been  said  before,  that  it  does  not  mean 
an  absolute  physical  necessity,  but  a  moral  fitness  or  propriety  of  the 
work  or  labor  done,  under  the  circumstances  of  any  particular  case.  .  .  . 
Generally  speaking,  it  ought  to  be  an  unforeseen  necessity,  or  if  fore- 
seen, such  as  could  not  reasonably  have  been  provided  against." 

The  following  opinions  still  further  define  the  law. 

The  making  of  a  promissory  note  on  the  Sabbath  is  common  labor 
and  therefore  illegal.     (Reynolds  v.  Stevenson,  4  Ind.  619,  1853). 

The  harvesting  of  dead-ripe  grain  on  the  Sabbath  is  a  work  of 
necessity.     (67  Ind.  595,  1879). 

Repairing  a  railroad  track  has  been  held  to  be  a  work  of  necessity. 
(Yonoski  et.  al.  v.  the  State  79  Ind.  393,  1881). 

The  publication  of  a  notice  of  a  Sheriff's  sale  in  a  Sunday  news- 
paper is  illegal.     (Shaw  v.  Williams,  87  Ind.  158,  1882). 


INDIANA.  15 

One  of  the  troublesome  questions  arising  under  Sabbath 
laws  is  whether  or  not  contracts  made  on  the  first  day  of  the 
week  are  binding.  In  Perkins  v.  Jones  this  question  was 
argued  at  some  length.  The  principle  involved  as  stated  by 
Lord  Mansfield  was  quoted  with  approval  as  follows : 

"The  objection  that  a  contract  is  immoral  or  illegal,  as  between  the 
plaintiff  and  defendent,  sounds  at  all  times  very  ill  in  the  jnouth  of  the 
defendant.  It  is  not  for  his  sake,  howevrr.  that  the  objection  is  al- 
lowed; but  it  is  founded  in  general  principl='s  of  policy,  "which  the  de- 
fendant has  the  advantage  of,  contrary  to  real  justice,  as  between  him 
and  the  plaintiff,  by  accident,  if  1  may  so  say.  The  principle  of  public 
policy  in  this:  Ex  dolo  malo  non  oritur  actio.  No  court  will  lend  its 
aid  to  a  man  who  founds  his  cause  of  action  upon  an  immoral  or  an 
illegal  act. 

"If  from  the  plaintiff's  own  stating,  or  otherwise,  the  cause  of  ac- 
tion appears  to  arise  ex  turpi  causa,  or  the  transgression  of  a  positive 
law  of  this  country,  there,  the  Court  says,  he  has  no  right  to  be  assist- 
ed. It  is  upon  that  ground  the  court  goes,  not  for  the  sake  of  the  de- 
fendant, but  because  it  will  not  lend  its  aid  to  such  a  plaintiff.  So,  if 
the  plaintiff  and  defendant  were  to  change  sides,  and  the  defendant  was 
to  bring  his  action  against  the  plaintiff,  the  latter  would  then  have  the 
advantage  of  it,  for  where  both  are  equally  in  fault,  potior  est  conditio 
defendentis." 

The  Supreme  Court  of  Indiana  holds  that  while  a  contract  made  on 
Sabbath  is  void,  it  may  be  ratified  on  another  day,  but,  "The  mere 
retention  of  that  which  has  been  received  upon  such  a  contract,  even 
after  a  demand  for  its  return,  will  not  amount  to  a  ratification."  (26 
Ind.    499,  1866.     See  also  Davis  v.  Barker.  57  Ind.  54,  1877). 

In  Peter  v.  Wright,  it  was  shown  that  a  contract  had  b^en  made 
for  the  delivery  of  flour  requiring  labor  on  the  Sabbath.  Only  part  of 
the  flour  was  delivered  in  the  specified  time,  the  price  of  the  flour  fell 
and  loss  was  sustained.     The  Supreme  Court  said: 

"If  it  is  illegal  to  make  a  contract  on  Sunday,  it  certainly  is  illegal 

to  contract  to  perform  one  requiring  common  labor  on  that  day 

If  the  vicissitudes  of  trade  and  speculation  were  allowed  to  fix  the  rule 
as  to  what  are  works  of  necessity,  there  could  be  no  observance  of  the 
Sabbath.  There  are  as  a  general  thing,  dangers  attending  every  enter- 
prise, which  may  be  avoided  by  expedition;  but  the  Sabbath  is  not  the 
day  for  common  labor  although  by  such  labor  dangers  may  be  avoided." 
(30  Ind.  476,  1868). 

It  will  be  observed  by  those  who  examine  the  cases  that  have  come 
before  the  courts  in  the  different  States  that  violators,  of  the  Sabbath 
law  frequently  plead  the  law  as  an  excuse  for  the  non-fulfillment  of 
obligations.    A  case  in  point  is  the  following: 

George  H.  Bennett,  a  brakeman  on  the  New  Albany  &  Chicago 
Railway,  was  killed  on  the  Sabbath  while  engaged  in  his  usual  voca- 


a6  INDIANA. 

tion.  His  widow  sued  the  company  for  damages.  The  plea  of  the  com- 
pany was  that  Bennett  was  violating  the  Sabbath  law  at  the  time  he 
was  killed,  and  that  this  fact  would  bar  the  widow  from  the  right  to  re- 
cover. The  Court  held  that  the  company  "cannot  now  become  the 
champion  of  the  Sunday  law  as  an  excuse  for  its  wrong,  or  to  defeat  a 
recovery." 

In  Dugan  v.  the  State,  a  case  relating  to  the  running  of  a  steam- 
boat on  the  Sabbath  to  carry  people  to  a  picnic,  the  Court  held 
that  this  was  neither  necessity  nor  charity,  and  was  therefore  a  viola- 
tion of  the  law.     (125  Ind.  130,  1890). 

In  Catlett  v.  Trustees  of  the  M.  E.  Church,  (62  Ind.  365,  1878),  it 
was  held  that  a  subscription  made  to  a  Church  on  the  Sabbath  is  not 
binding,  but  in  the  case  of  Bryan  v.  Watson,  (127  Ind.  42,  1890),  this 
opinion  was  overruled,  and  such  acts  were  held  to  be,  not  common 
labor,  but  works  of  charity.  It  was  held  further  that  if  such  subscrip- 
tions are  forbidden  by  the  law,  "then  every  collection  made  on  the 
Sabbath  day,  in  connection  with  religious  services,  is  an  act  of  common 
labor,  and  unlawful." 

In  1899,  in  the  case  of  The  State  v.  Hogreiver,  (152  Ind.  652),  an  ef- 
fort was  made  to  secure  a  decision  by  the  Supreme  Court  declaring 
•section  2087,  which  forbids  games  of  baseball  on  the  Sabbath,  to  be  un- 
constitutional, but  the  effort  failed. 

Repeats  efforts  to  secure  the  repeal  of  this  section  by  the  legis- 
lature have  also  failed. 

This  exhibition  of  the  legal  struggles  in  Indiana  over  the 
Sabbath  law  shows  that  the  courts  have  sometimes  wavered  a 
little  both  on  the  question  of  the  constitutionality  of  the  law  and 
of  its  proper  interpretation.  It  appears  however  that  the  tone  of 
the  later  decisions  is  better  than  that  of  the  older  ones.  The 
people  of  Indiana  are  to  be  congratulated  not  only  on  this  fact, 
tut  also  on  the  fact  that  the  legislature  has  refused  to  modify  the 
law  at  the  solicitation  of  those  who  would  make  the  Sabbath  a  day 
for  base  ball  and  other  athletic  sports. 

NORTH  CAROLINA.     (1883). 

Chapter  Twenty-five  of  the  statutes  of  North  Carolina  is 
entitled  "Crimes  and  Punishments. "  The  following  sections  re- 
late to  the  Sabbath : 

"1115.  If  any  person  whosoever  shall  be  known  to  hunt  on  the 
Lord's  day,  femmonly  called  Sunday,  with  a  dog  or  dogs,  or  shall  be 
found  off  his  own  lands  on  Sunday,  having  a  shot  gun,  rifle  or  pistol, 
every  person  so  offending  shall  be  subject  to  indictment;  and  shall  pay 
a  fine  not  to  exceed  fifty  dollars,  at  the  discretion  of  the  Court,  two- 
thirds  of  such  fine  to  inure  to  the  benefit  of  the  free  public  schools  in 


NORTH  CAROLINA.  17 

the  County  of  which  such  convict  is  a  resident,  the  remainder  to  the  in- 
formant. 

"1116.  It  shall  be  unlawful  for  any  person  to  fish  on  Sunday  with 
a  seine,  drag  net  or  other  kind  of  net,  except  such  as  are  fastened  to 
stakes;  and  any  person  violating  this  section  shall  be  guilty  of  a  mis- 
■demeanor,  and  fined  not  less  than  two  hundred  nor  more  than  five  hun- 
dred dollars,  or  imprisoned  not  more  than  twelve  months. 

"1117.  If  any  person  shall  sell  spirituous,  or  malt,  or  other  intoxi- 
cating liquors  on  Sunday,  except  on  the  prescription  of  a  physician,  and 
then  only  for  medical  purposes,  the  person  so  offending  shall  be  guilty 
of  a  misdemeanor,  and  punished  by  fine,  or  imprisonment,  or  both,  in 
the  discretion  of  the  court."     (Vol.  I.,  pp.  448,  449). 

Chapter  Forty-nine  relates  to  Railroad  Companies.     Section 
1973  regulates  railroad  labor  and  traffic  on  the  Lord's  day : 

"No  railroad  company  shall  permit  the  loading  or  unloading  of 
any  freight  car  on  Sunday;  nor  shall  permit  any  car,  train  of  cars,  or 
locomotive  to  be  run  on  Sunday  on  any  railroad,  except  such  as  may 
be  run  for  the  purpose  of  transporting  the  United  States  mails,  either 
with  or  without  passengers,  and  except  such  as  shall  be  run  for  car- 
rying passengers  exclusively:  Provided,  that  the  word  Sunday  in  this 
section  shall  be  construed  to  embrace  only  that  portion  of  the  day  be- 
tween sunrise  and  sunset;  and  that  trains  in  transitu,  having  started 
on  Saturday,  may,  in  order  to  reach  the  terminus  or  shops,  run  until 
nine  o'clock  A.  M.  on  Sunday,  but  not  later,  nor  for  any  other  purpose 
than  to  reach  the  terminus  or  shops.  And  any  railroad  company  vio- 
lating this,  section  shall  be  guilty  of  a  misdemeanor  in  each  county  in 
■which  such  car,  train  of  cars  or  locomotive  shall  run,  or  in  which  any 
such  freight  car  shall  be  loaded  or  unloaded;  and  upon  conviction  shall 
be  fined  not  less  than  five  hundred  dollars  for  each  offense;  the  fine 
when  collected  to  be  paid  to  the  State  Treasurer  for  the  use  of  the 
public  schools."     (Vol.  I.,  p.  759). 

.  Chapter  Sixty-one  is  entitled  "Sunday  and  Holidays."  The 
sections  relating  to  "Sunday"  are  these: 

"3782.  On  the  Lord's  day,  commonly  called  Sunday,  no  tradesman, 
artificer,  planter,  laborer,  or  other  person,  shall,  upon  land  or  water, 
do  or  exercise  any  labor,  business  or  work,  of  his  ordinary  calling 
works  of  necessity  and  charity  alone  excepted,  nor  employ  himself  in 
hunting,  fishing,  or  fowling,  nor  use  any  game,  sport  or  play,  upon  patn 
that  every  person  so  offending,  being  of  the  age  of  fourteen  years  and 
upwards,  shall  forfeit  and  pay  one  dollar. 

"3783.  If  ar^^  person  shall  be  known  to  hunt  on  Sunday  with  a 
dog,  or  shall  be  found  off  his  premises  on  Sunday,  having  with  him  a 
shot  gun,  rifle  or  pistol,  he  shall  be  guilty  of  a  misdemeanor,  and  pay 
a  fine  not  exceeding  fifty  dollars,  two-thirds  of  such  fine  to  inure  to 
the  benefit  of  the  public  schools  in  the  county  in  which  such  convict 
is  a  resident,  the  remainder  to  the  informant;  and  upon  failure  of  such 


i8  NORTH  CAROLINA. 

convict  to  pay  the  required  line,  tie  sliall  be  imprisoned  at  hard  labor 
for  not  more  than  three  months,  as  the  Court  shall  direct:  Provided, 
that  this  section  shall  not  apply  to  any  person  who  may  violate  its 
provisions  in  defence  of  his  own  property."     (Vol.  2,  pp.  573,  "74). 

The  law  provides  that  when  a  holiday  falls  on  Sabbath  the  following 
Monday  shall  be  a  holiday,  and  papers  due  on  such  Sabbath  are  pay- 
able on  Saturday,  and  papers  otherwise  payable  on  Monday  are  payable 
on  Tuesday.  When  Saturday  is  a  legal  holiday  papers  due  on  Sabbath 
are  payable  on  Monday.  When  Monday  is  a  legal  holiday  papers  due 
on  that  day  are  payable  on  Tuesday.     (Vol.  II,  pp.  573,  574). 

The  constitutionality  of  this  law  has  never  been  seriously 
questioned,  and  has  only  been  considered  incidentally  by  the 
Supreme  Court.  The  most  important  of  the  opinions  in  which 
its,  constitutionality  is  thus  incidentally  upheld  was  rendered  in 
1844  in  State  v.  Williams.  In  this  case  Williams  had  compelled 
his  slaves  to  labor  on  his  farm  on  Sabbath.     The  Court  said: 

"The  conduct  of  the  defendant  is  contrary  to  the  usages  of  North 
Carolina,  the  general  welfare,  and  likewise  to  the  law  of  the  land.  It 
seems  to  us  to  be  very  reprehensible;  for  we  perfectly  concur  in  the  elo- 
quent passage  in  the  Commentaries,  on  the  propriety  and  political  neces- 
sity of  keeping  one  day  of  the  week  for  the  purposes  of  public  worship.  4 
Bl.  63.  The  institution,  wherever  it  has  existed,  has  proved  to  be  a 
great  good,  promoting  private  virtue  and  happiness  among  all  classes, 
and  the  public  morals  and  prosperity.  It  is,  therefore,  fit,  that  every 
Commonwealth,  and  especially  one  in  which  Christianity  is  generally 
professed,  should  set  apart  by  the  law  a  day  for  those  purposes  and 
enforce  its  due  observance  by  such  sanctions  as  may  seem  adequate." 
As  to  the  offense  in  this  case  the  Court  said:  "The  truth  is,,  that 
it  offends  us,  not  so  much  because  it  disturbs  us  in  practicing  for  our- 
selves the  religious  duties,  or  enjoying  the  sakitary  repose  or  recreation, 
of  that  day,  as  that  it  is  in  itself  a  breach  of  God's  law,  and  a  violation 

of  the  party's  own  religious  duty Although  it  may  be  true,  that  the 

Christian  religion  is  a  part  of  the  common  law,  it  is  not  so  in  the  sense 
that  an  act  contrary  to  the  precepts  of  our  Saviour  or  Christian  morals, 
is,  necessarily,  indictable.  Those  which  are  merely  against  God  and 
religion  were  left  to  the  correction  of  conscien'ce,  or  the  religious  au- 
thorities of  the  State Therefore,  however  clearly  the  profanation 

of  Sunday  might  be  against  the  Christian  religion,  it  is  not  and  could 

not  be  made,  merely  as  a  breach  of  religious  duty,  an  offense 

The  Legislature,  deeming  it,  as  it  does  many  other  violations  of  Christ- 
ian duty,  detrimental  to  the  State,  may  prohibit  it,  and  then  it  will  be 
punishable  to  the  extent  and  in  the  manner  pointed  out  by  the  Legis- 
lature. There  are  many  offenses  against  God  which  are  not  offenses 
against  the  State.  An  act  is  punishable  in  the  temporal  courts,  not 
as  being  prohibited  by  ecclesiastical  authority,  or  even  by  the  Divine 


NORTH  CAROLINA.  ly 

Head  of  the  Church,  but  as  being  forbidden  by  the  civil  power  of  the 
State  residing  in  the  Legislature."     (4  Iredell,  400). 

In  1843  t^^6  Supreme  Court  hi  Sloan  v.  Williford  declared 
that  "a  notice  to  take  a  deposition  on  Sunday  is  not  good,  and 
a  deposition  taken  on  such  notice  must  be  rejected." 

In  speakinp^  of  the  rights  of  those  who  believe  it  to  be 
against  the  moral  law  to  devote  the  Sabbath  to  secular  concerns 

the  Court  said : 

"They  ought  neither  to  be  compelled  to  violate  their  sense  of  duty, 
nor  to  abandon  their  civil  rights."  "It  would  be  indulging  a  wanton 
or  a  worse  spirit,  If  a  party  with,  six  other  days  in  the  week  appropri- 
ate to  such  a  purpose,  were  encouraged  to  select  for  it  the  seventh."" 
Ce  Ired.  307). 

In  i860  the  Supreme  Court  in  Melvin  v.  Easly  used 
vigorous  language  as  to  the  habit  of  taking  adyantage  of  the 
Sabbath  law  by  persons  who  have  cheated  in  contracts  made  on 
the  Lord's  day.  In  this  case  a  horse  trader  had  sold  a  horse  and 
guaranteed  its  .soimdness  which  was  false.  The  Court  first 
decided  that  the  buyer  did  not  violate  the  statute  because  buying; 
horses  was  not  his  ordinary  calling.     Proceeding  it  said : 

"The  court  will  not  aid  any  person  who  violates  law;  therefore, 
the  defendant  could  not  maintain  an  action.  This  rule  is  adopted  on 
the  ground  of  policy,  for  tke  purpose  of  preventing  the  violation  of 
law,  and  if  confined  in  its  operation  to  the  actual  offender,  its  applica- 
tion will  be  salutary,  b»t  if  it  be  extended  to  the  party  who  is  not  an 
offender,  so  far  from  checking,  it  will  encourage  a  violation  of  it,  by 
letting  it  be  known  to  "horse-traders,"  "shop-keepers,"  and  "all  whont 
•it  may  concern"  that  they  may  cheat  with  impunity,  provided  always,  it 
may  be  done  on  the  Lord's  day.  "They  will  readily  purchase  this  in- 
dulgence and  dispensation,  by  paying  one  dollar  if  it  should  be  sued 
for."     (7  Jones.  356). 

There  is  a  law  in  North  Carolina  which  says:  "It  shall  be  unlaw- 
ful for  any  railroad  company,  etc.,  to  allow  any  freight  they  may  re- 
ceive for  shipment  to  remain  unshipped  for  more  than  five  days,  unless- 
otherwise  agreed."  It  was  held  by  the  Supreme  Court  in  A.  Branch  v., 
W.  &  W.  R.  R.  Co.,  that  if  the  Sabbath  is  inducted  in  such'  a  period  it: 
is  to  be  counted.     (77  N.  C,  347). 

Receiving  the  verdict  of  a  jury  on  Sabbath  is  not  a  violation  of  the^ 
law. 

In  addition  to  the  objectionable  feature  noted  as  belonging- 
to  the  laws  of  all  States  of  this  class  the  law  of  North  Carolina  is 
somewhat  weakened  by  making  the  penalty  for  violating  the  sec- 
tion relating  to  labor,  business  and  work  onlv  one  dollar.     The 


20  RHODE  ISLAND. 

railroad  law  if  enforced  will  prevent  a  vast  amount  of  unneces- 
sary disturbance  of  the  peace  and  quietness  of  the  day  of  rest. 
The  constitutionality  of  the  law  is  sustained  on  high  ground, 
although  there  are  some  sentences  in  the  opinion  handed  down 
in  State  v.  Williams  open  to  criticism.  All  things  consid- 
^  ered  the  law  of  this  State  is  quite  satisfactory. 

RHODE  ISLAND.     (1896). 

''Chapter    281,    Title    XXX.    treats    of    "OfTences    against 
'"Chastitv,  Morality  and  Decencv." 

The  following  sections  relate  to  "Sabbath  breaking": 

"17.  Every  person  who  shall  do  or  exercise  any  labor  or  business 
or  work  of  his  ordinary  calling,  or  use  any  game,  sport,  play  or  recre- 
ation on  the  first  day  of  the  week,  or  suffer  the  same  to  be  done  or 
used  by  his  children,  servants  or  apprentices,  works  of  necessity  and 
"Charity  only  excepted,  shall  be  fined  not  exceeding  five  dollars  for  the 
first  offense  and  ten  dollars  for  the  second  and  every  subsequent  of- 
:fense. 

"18.  Every  person  who  shall  employ,  improve,  set  to  work  or  en- 
courage the  servant  of  any  other  person  to  commit  any  act  named  in 
the  preceding  section  shall  suffer  the  like  punishment. 

"19.     All  complaints  for  violations  of  the     provisions  of  the  pre- 
■ceding  two  sections  shall  be  made  within  ten  days  after  the  commit- 
ting  thereof  and  not    afterwards. 

"20.  Every  professor  of  the  Sabbatarian  faith  or  of  the  Jewish 
religion,  and  such  others  as  shall  be  owned  or  acknowledged  by  any 
church  or  society  of  said  respective  profession  as  members  of  or  as 
belonging  to  such  church  or  society,  shall  be  permitted  to  labor  in 
their  respective  professions  or  vocations  on  the  first  day  of  the  week, 
~but  the  exception  in  this  section  contained  shall  not  confer  the  liberty 
of  opening  shops  or  stores  on  the  said  day  for  the  purpose  of  trade  and 
merchandise,  or  lading,  unlading  or  of  fitting  out  of  vessels,  or  of 
working  at  the  smith's  business  or  any  other  mechanical  trade  in  any 
compact  place,  except  the  compact  villages  in  Westerly  and  Hopklnton, 
or  of  drawing  seines  or  fishing  or  fowling  in  any  manner  in  public 
places  and  out  of  their  own  possessions;  and  in  case  any  dispute  shall 
arise  respecting  the  persons  entitled  to  the  benefit  of  this  section,  a 
certificate  from  a  regular  pastor  or  priest  of  any  of  the  aforesaid 
churches  or  societies  or  from  any  three  of  the  standing  members  of 
such  church  or  society,  declaring  the  person  claiming  the  exemption 
aforesaid  to  be  a  member  of  or  owned  by  or  belonging  to  such  church 
or  society,  shall  be  received  as  conclusive  evidence  of  the  fact."  (p. 
1003.) 


RHODE  IS  LA  XI).  21 

The  statutes  providing  for  the  granting  of  licenses  to  liquor  deal- 
ers, showmen  and  pawnbrokers  declare  that  these  licenses  shall  not 
authorize  the  carrying  on  of  these  occupations  on  the  Sabbath. 

All  persons  except  those  in  military  service  are  forbidden  to  dis- 
charge firearms  on  the  Sabbath.     (Sec.  3,  chap.  92.) 

No  civil  process  can  be  served  on  the  Sabbath.  (Sec.  34,  chap.. 
207.) 

The  cases  that  have  come  before  the  Stiprenie  Court  are  few,, 
and  these  deal  principally  with  Sunday  contracts.  A  peculiar 
interest  attaches  to  such  contracts  in  Rhode  Island  because  of 
the  clause  in  the  statute  liniitinji^  the  prohibition  to  labor,  business- 
or  work  in  one's  ordinary  calling.  In  Allen  v.  Gardiner  this 
was  considered  at  length.  The  case  related  to  the  validity  of  a 
•release  executed  by  Gardiner  on  the  first  day  of  the  week.  The 
Court  declared  that  this  statute  is  a  transcript  of  29th.,  Charles 
II.,  §  7,  and  that  the  settled  construction  of  it  in  England  is  that 
it  did  not  intend  that  every  act  of  business  or  labor  performed  on 
the  first  day  of  the  week  should  be  punishable,  but  that  the 
ordinary,  daily  occupation  of  men  should  be  suspended  on  that 
day,  and  that  no  act  in  the  pursuit  of  that  occupation  or  calling 
should  be  performed,  unless  called  for  by  some  necessity,  or  mo- 
tive of  charity.  A  number  of  cases  are  cited,  the  following  be- 
ing a  fair  example.  Drury,  a  banker,  sent  a  horse  to  one  Hull 
who  kept  a  commission  stalole  for  the  sale  of  horses  by  auction.. 
Hull  sold  the  horse  to  Defontaine  at  private  sale  on  Sabbath. 
The  Court  held  that  as  selling  horses  was  not  Drury's  occupa- 
tion, and  as  selling  at  private  sale  was  not  Hull's,  the  statute  was 
not  violated.  The  Court  held  that  the  law  of  Rhode  Island  is 
to  be  similarly*construed.  "The  only  inquiry  in  every  case  is,. 
was  the  business  or  work  done  in  the  course  of  the  ordinary 
employment  of  the  party?  If  it  was,  it  is  within  the  statute;, 
otherwise,  not."     ( R.  I.  7,  22,  1861.) 

In  Whelden  v.  Chappel  it  was  held  that   -'The  letting  of  a  horse 
on  Sunday,  by  a  livery  stable  keeper,  in  the  ordinary     course     of     his. 
calling,  when  uncalled  for  either  by  necessity  or  charity,  is  an  illegal 
transaction."     (R.  I.  8,  230,  1865.) 

In  Sayles  v.  Wellman,  relating  to  the  sale  of  a  horse  on  Sabbath, 
and  the  validity  of  a  note  for  part  of  the  purchase  money  given  on 
the  following  Tuesday,  the  Court  held  that  the  note  validated  the  con- 
tract. The  Court  said:  "We  think  that  as  the  contract  is  invalid  only 
on  account  of  the  time,  reason  and  weight  of  authority  are  in  favor  of 
allowing  a  ratification,  more  especially  where  the  defendant  retains, 
the  property."     (10  R.  I.  465,  1873.) 


22  RHODE  ISLAND. 

The  case  of  Smith  v.  Rollins  serves  to  illustrate  a  common  oc- 
currence, and  the  interpretation  of  the  law  as  to  contracts  made  on 
the  Sabbath.  Smith,  a  livery  stable  keeper,  let,  in  his  ordinary  busi- 
ness, a  horse  and  carriage  to  be  driven  for  pleasure  to  a  particular 
place.  Rollins,  the  hirer,  drove  them  to  a  different  place,  and  returned 
them  damaged.  Whereupon  Smith  brought  trover  against  Rollins  for 
the  conversion  of  horse,  buggy  and  harness.  The  Court  held  that  such 
a  contract  is  illegal,  that  the  terms  of  the  illegal  contract  must  be 
produced  by  the  plaintiff  in  proof  of  the  conversion;  and  that  since  the 
contract  is  illegal,  he  cannot  recover.     (11  R.  I.  464,  1S78.) 

The  question  whether  a  person  who,  while  traveling,  receives  an 
injury  through  the  carelessness  of  another,  is  entitled  to  damages, 
came  before  the  Supreme  Court  in  Baldwin  v.  Barney.  The  Court 
called  attention  to  the  fact  that  this  question  is  not  always  answered 
in  the  same  way.  In  some  States  it  is  held  that  such  a  person  mu^t 
show  that  he  was  traveling  from  necessity  or  charity,  the  burden  of 
proof  being  on  him- to  show  that  his  own  fault  did  not  concur  in  caus- 
ing the  injury.  The  following  cases  in  Massachusetts  are  referred  to: 
Bosworth  V.  Inhabitants  of  Swansey,  10  Met.  3G3;  Jones  v.  Inhabitants 
•of  Andover,  10  Allen,  18;  Stanton  v.  Metropolitan  R.  R.  Co.,  14  Allen 
485;  Smith  v.  Boston  and  Maine  Railroad,  120  Mass.  490.  The  Court 
..adds:  "The  logic  of  this  opinion  is,  that  a  person  who  receives  an 
injury  while  traveling,  which  he  would  not  have  received  if  he  had  not 
"been  traveling,  contributes  to  the  injury  by  the  act  of  traveling,  and 
that  he  is  therefore  bound  to  show  that  his  own  fault  did  not  concur  in 
causing  his  injury." 

The  validity  of  this  reasoning  is  disputed  by  some  courts,  among 
:them  the  Supreme  Court  of  Rhode  Island,  which  regards  the  traveling 
,as  a  "condition  rather  than  as  a  cause  of  the  injury,"  and  that  the  in- 
jured person  is  entitled  to  damages,     (12  R.  I.  392,  1880.) 

A  complicated  case  arose  in  1888  involving  the  matter  of  a  contract 
made  in  Connecticut.  The  law  of  Connecticut  prohibits  secular  busi- 
ness on  the  Lord's  day  between  sunrise  and  sunset,  while  that  of 
Rhode  Island  prohibits  such  business  in  one's  ordinary  calling  between 
midnight  on  Saturday  and  midnight  on  Sabbath.  It  was  held  that  a 
-contract  made  after  sunset  in  Connecticut  is  valid  and  can  be  enforced 
in  Rhode  Island.     (Brown  v.  Browning,  15  R.   I.  422.) 

In  Pepin  v.  Societe  St.  Jean  Baptiste,  it  was  held  that  "A  bene- 
'flcial  society,  in  the  trial  of  charges  against  a  member  under  Its  by- 
laws, is  not  a  court  of  law.  Its  action  is  a  part  of  the  business  of 
such  a  society,  and  is  not  void  because  transacted  upon  Sunday."  (24 
■R.  I.  550,  1902.) 

The  weakne.ss  of  laws  of  this  class  is  seen  in  an  as^gravated 
'form  in  the  case  of  Rhode  Island,  in  Allen  v.  Gardner  quoted 
.above.  In  most  other  respects  the  law^  is  excellent  and  is  weH 
•sustained  bv  the  courts. 


SOUTH   CAROLINA.  23 

SOUTH  CAROLINA.     (1902). 

"Non-observance  of  the  Lord's  day  and  Disturbing  Religious 
Worship"  is  the  title  of  Chapter  XXIV.  of  the  statutes  of  South 
Carolina.     The  following  sections  relate  to  the  first  part  of  this 

title : 

"500.  No  tradesman,  artificer,  workman,  laborer,  or  other  person 
whatsoever,  shall  do  or  exercise  any  worldly  labor,  business  or  work 
of  their  ordinary  callings  upon  the  Lord's  day  (commonly  called  Sab- 
bath), or  any  part  thereof  (works  of  necessity  or  charity  only  ex- 
cepted) ;  and  every  person,  bfeing  of  the  age  of  fifteen  years  or  upwards, 
offending  in  the  premises  shall  for  every  such  offense  forfeit  the  sum 
of  one  dollar. 

"501.  No  person  or  persons  whatsoever  shall  publicly  cry,  show 
forth  or  expose  for  sale  any  wares,  merchandise,  fruit,  herbs,  goods, 
or  chattels  whatsoever,  upon  the  Lord's  day,  or  any  part  thereof,  upon 
pain  that  every  person  so  offending  shall  forfeit  the  same  goods  so 
cried,  or  showed  forth,  or  exposed  to  sale. 

"502.  No  public  sports  or  pastimes,  or  bear-bating,  bull-fighting, 
foot-ball  playing,  horse-racing,  interludes,  or  common  plays,  or  other 
games,  exercises,  sports  or  pastimes  whatsoever,  shall  be  used  on  the 
Lord's  day  by  any  person  or  persons  whatsoever;  and  every  person  or 
persons  offending  in  any  of  the  premises  shall  upon  conviction  be 
deemed  guilty  of  a  misdemeanor,  and  be  subject  to  a  fine  not  exceeding 
fifty  dollars  or  imprisonment  not  exceeding  thirty  days. 

"503.  In  addition  to  the  penalties  prescribed  against  tradesmen, 
artificers,  workmen  and  laborers  who  shall  do  or  exercise  any  worldly 
labor,  business  or  work  of  their  ordinary  calling  upon  the  Lord's  day 
(commonly  called  the  Sabbath)  or  Sunday,  or  any  part  thereof,  any 
corporation,  company,  firm  or  person  who  shall  order,  require  or  di- 
rect any  work  to  be  done  in  any  machine  shop  or  shops  on  Sunday, 
except  in  cases  of  emergency,  shall  upon  conviction,  be  deemed  guilty 
of  a  misdemeanor,  and  shall  be  fined  in  a  sum  not  less  than  one  hun- 
dred dollars  and  not  more  than  five  hundred  dollars  for  each  offense. 

"504.  For  the  better  execution  of  all  and  every  one  of  the  forego- 
ing provisions,  every  magistrate  within  his  county  shall  have  power 
and  authority  to  summon  before  him  any  person  or  persons  whatso- 
ever who  shall  offend  in  any  of  the  particulars  before  mentioned,  and 
upon  his  own  view,  or  confession  of  the  party,  or  proof  of  any  one  or 
more  witnesses,  upon  oath,  the  said  magistrate  shall  give  a  warrant, 
under  his  seal,  to  seize  the  said  goods  cried,  showed  forth  or  put  to 
sale  as  aforesaid,  and  to  sell  the  same;  and  as  to  the  other  penalties 
and  forfeitures,  to  impose  the  fine  and  penalty  for  the  same,  and  to 
levy  the  said  forfeitures  and  penalties  by  way  of  distress  and  sale 
of  the  goods  of  every  such  offender,  returning  the  overplus,  if  any  be, 
after  charges  allowed  for  the  distress  and  sale.     All  forfeitures   and 


24  SOUTH  CAROLINA. 

penalties  recovered  under  this  chapter  to  be  paid  over  to  the  County 
Treasurer  for  the  use  of  the  county."     (Vol.  II.,  pp.  397,  398). 

"516.  Whoever  shall  keep,  or  suffer  to  be  kept,  any  gaming  table, 
or  permit  any  game  or  games  to  be  played  in  his,  her,  or  their  house, 
on  the  Sabbath  day,  such  persons,  on  conviction  thereof  before  any 
court  having  jurisdiction,  shall  be  fined  in  the  sum  of  fifty  dollars,  ta 
be  sued  for  on  behalf  of,  and  to  be  recovered  for,  the  use  of  the  State." 
(Vol.  II.,  p.  403.) 

Chapter  L.  of  the  Civil  Code  contains  the  General  Railroad  law. 
Article  VI.  is  entitled,  "Regulations  as  to  running  trains  on  Sunday 
and  Carriage  of  Animals."  The  sections  relating  to  the  Sabbath  are 
these : 

"2121.  It  shall  be  unlawful  for  any  railroad  corporation  owning 
or  controlling  railroads  operating  in  this  State  to  load  or  unload  or 
permit  to  be  loaded  or  unloaded,  or  to  run  or  permit  to  be  run,  on 
Sunday,  any  locomotive,  cars  or  trains  of  cars  moved  by  steam  power 
except  as  hereinafter  provided,  and  except  to  unload  cars  loaded  with 
animals. 

"2122.  Said  corporations  or  persons  may  run  on  Sunday,  during 
the  months  of  April,  May,  June,  July  and  August,  trains  loaded  ex- 
clusively with  vegetables  and  fruits;  and  on  said  day,  in  any  and  every 
month,  their  regular  mail  trains,  as  may  be  rendered  necessary  by  ex- 
traordinary emergencies  other  than  those  incident  to  freight  or  pas- 
senger traffic,  and  such  freight  trains  as  may  be  in  transitu  which  can 
reach  their  destination  by  six  o'clock  in  the  forenoon:  Provided,  That 
the  Railroad  Commissioners  shall  have  the  power  (upon  proper  ap- 
plication made  to  them  for  the  purpose,  by  the  officers  of  the  Church 
or  religious  denominations  in  charge  of  the  place  where  such  services 
are  to  be  held)  to  authorize  and  permit  the  running  of  trains  on  any 
Sunday  in  the  year  for  the  transporting  of  passengers  to  and  from  re- 
ligious services:  Provided  the  application  for  the  permit  and  the 
authority  granted  must  both  be  in  writing  and  made  a  part  of  the  rec- 
ords of  said  Railroad  Commissioners. 

"2123.  Any  train  running  by  a  schedule  in  conformity  with  the 
provisions  of  this  chapter,  but  delayed  by  accident  or  other  unavoid- 
able circumstance,  may  be  run  until  it  reaches  the  point  at  which  it 
is  usual  for  it  to  rest  on  Sunday. 

"2124.  For  a  wilful  violation  of  the  provisions  of  the  three  pre- 
ceding sections  the  railroad  company  so  offending  shall  forfeit  to  the 
State  five  hundred  dollars,  to  be  collected  in  any  Court  of  competent 
jurisdiction."     (Vol.  I.,  pp.  817,  1818.) 

The  following  law  relates  to  the  sale  of  liquor  on  the  Sabbath: 

"It  shall  not  be  lawful  for  any  person  to  sell,  trade  or  barter  any 
spirituous  liquors  or  wine  on  Sunday;  and  any  person  so  doing  shall 
be  liable  to  a  fine  of  not  less  than  ten  dollars,  or  more  than  two  hun- 
dred dollars,  or  imprisonment  for  not  less  than  ten  days  or  more  than 
two  months." 


SOUTH  CAROLINA.  25 

The  constitutionality  of  Sabbath  laws  was  sitstained  by  the 
Supreme  Court  of  South  Carolina  in  1833  in  the  case  of  Town 
Council  of  Columbia  v.  Duke  and  ^Marks,  who  were  indicted  for 
keeping  their  shop  open  on  the  Sabbath. 

Judge  Martin  in  delivering  the  opinion  of  the  court  de- 
clared : 

"The  ordinance  neither  exacts  nor  imposes  any  religious  duty  or 
obligation — it  requires  no  sacrifice  on  the  part  of  any  one,  unless  clos- 
ing their  doors  and  suspending  their  business  be  so  considered 

It  enjoins  no  profession  of  faith,  demands  no  religious  test,  extorts  no 

religious  ceremony,  conf:'rs  no  religious  privilege  or  preference 

Now,  if  the  Ordinance  in  question  required  either  of  the  relators  to  ob- 
serve Sunday  as  a  sacred  day,  or  to  conform  to  the  notions  of  others  as 
to  its  holy  character,  then  it  would  be  giving  a  'preference,'  or  mak- 
ing a  'discrimination,'  in  contravention  of  the  Constitution." 

The  constittitionality  of  the  law  was  again  sustained  in  the 
case  of  City  Council  of  Charleston  v.  Benjamin  in  1846.  Mr. 
Benjamin  was  a  Jew  and  kept  a  store  in  the  city  of  Charleston. 
He  sold  goods  on  the  Sabbath  and  was  indicted  under  a  city 
ordinance  which  declares  that  "no  person  or  persons  whatever,, 
shall  publicly  expose  for  sale,  or  sell,  in  any  shop,  warehouse,  or 
otherwise,  any  goods,  wares,  or  merchandize  whatsoever,  upon 
the  Lord's  day."  The  City  Cottrt  decided  that  this  ordinance 
"is  in  regard  to  the  present  defendant,  in  clear  and  palpable  vio- 
lation of  the  8th  Article  of  the  constitution  of  the  State,"  which 
guarantees  "the  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship."  The  case  then  went  to  the  Supreme 
Court.  The  opinion  of  the  lower  court  was  reversed  and  the 
constitutionality  of  the  ordinance  sustained.  Among  other 
things  the  Court  said : 

"The  Lord's  day,  the  day  of  the  Resurrection,  is  to  us  who  are 
called  Christians,  the  day  of  rest  after  finishing  a  new  creation.  It 
is  the  day  of  the  first  visible  triumph  over  death,  hell  and  the  grave! 
It  was  the  birthday  of  the  believer  in  Christ,  to  whom  and  through, 
whom  it  opened  up  the  way  which,  by  repentance  and  faith,  leads  unto 
everlasting  life  and  eternal  happiness!  On  that  day  we  rest  and  to  us 
it  is  the  Sabbath  of  the  Lord — its  decent  observance  in  a  Christian 
community,  is  that  which  ought  to  be  expected. 

"It  is  not  perhaps  necessary  to  the  purposes  of  this  case,  to  rule 
and  hold  that  the  Christian  religion  is  part  of  the  common  law  of  South 
Carolina.  Still  it  may  be  useful  to  show  that  it  lies  at  the  foundation 
of  even  the  Article  of  the  Constitution  under  consideration,  and  that 


26  SOUTH  CAROLINA. 

Hpon  it  rest  many  of  the  principles  and  usages,  constantly  acknowl- 
edged and  enforced  in  the  courts  of  justice 

"What  gave  to  us  this  noble  safeguard  of  religious  toleration,  which 
made  the  worship  of  our  common  Father  as  free  and  easy  as  the  air  we 
breathe,  and  his  temple  as  wide,  capacious  and  lofty  as  the  sky  he 
has  spread  above  our  heads?  It  was  not  that  spirit  of  infidelity,  which 
deified  reason,  denied  God  and  was  stained  with  more  blood  than 
ever  flowed  upon  the  altars  of  the  Aztec  Idols.  It  was  Christianity 
robed  in  light,  and  descending  as  the  dove  upon  our  ancestors,  which 
gave  us  this  provision.  It  was  that  same  spirit  which,  when  the  war 
of  the  revolution  was  about  to  commence,  sanctified  a  fast,  and  pros- 
trated a  nation  before  the  Lord  of  hosts,  to  ask  his  blessing  and  as- 
sistance. .  .  .  Again,  our  law  declares  all  contracts  contra  tonos  mores, 
illegal  and  void.  What  constitutes  the  standard  of  good  morals  ?  Is  it 
not  Christianity?  There  certainly  is  none  other.  Say  that  cannot 
be  appealed  to,  and  I  don't  know  what  would  be  good  morals.  The  day 
of  moral  virtue  in  wMch  we  live  would,  in  an  instant,  if  that  standard 
were  abolished,  lapse  into  the  dark  and  murky  night  of  Pagan  immor- 
ality. In  this  State,  the  marriage  tie  is  indissoluble — whence  do  we 
take  that  maxim?  It  is  from  the  teaching  of  the  New  Testament 
alone.  In  the  courts  over  which  we  preside,  we  daily  acknowledge 
Christianity  as  the  most  solemn  part  of  our  administration.  A  Chris- 
tian witness,  having  no  religious  scruples  against  placing  his  hand 
upon  the  Book,  is  sworn  upon  the  holy  Evangelists— the  books  of  the 
New  Testament,  which  testify  of  our  Saviour's  birtl^,  life,  death  and 
resurrection;  this  is  so  common  a  matter  that  it  is  little  thought  of 
as  an  evidence  of  the  part  which  Christianity  has  in  the  common  law." 
Taking  up  the  Sabbath  law  the  Court  said:  "It  is,  however,  fancied 
in  some  way  this  law  is  in  derogation  of  the  Hebrew's  religion,  inas- 
much as  by  his  faith  and  this  Statute,  he  is  compelled  to  keep  two  Sab- 
baths. There  is  the  mistake.  He  has  his  own,  free  and  undiminished. 
Sunday  is  to  ue  our  day  of  rest.  We  say  to  tim,  simply,  respect  us, 
by  ceasing  on  this  day  from  the  pursuit  of  that  trade  and  business  in 
which  you,  by  the  security  and  protection  given  to  you  by  our  laws, 
make  great  gain.  This  is  a  mere  police  or  municipal  regulation.  If 
the  Israelite  were  allowed  to  make  the  objection  that  he  would  not  be 
constitutionally  restrained  from  pursuing  a  public  business  on  Sunday, 
the  infidel  would  say,  as  Duke  said,  "All  days  are  alike  to  me,  and 
therefore  I  will  at  all  times  pursue  my  business."  Such  an  assump- 
tion is  so  preposterous  that  no  one  would  tolerate  it If  it  were 

true  that  the  commandment  to  keep  the  Sabbath  day  holy  also  required 
the  Israelite  to  work  six  days,  as  closely  and  faithfully  as  he  is  to  ob- 
serve the  seventh  day  as  a  day  of  rest,  then  indeed  there  might  be  a 
ground  to  say  that  the  ordinance  which  requires  him  to  desist,  during 
Sunday,  from  a  public  business,  the  sale  of  goods,  was  unconstitutional. 
....  The  meaning  of  the  commandment  is  so  plain  that  I  almost  fear 


SOUTH  CAROLINA.  27 

to  add  any  explanation  of  my  own.  In  six  days  the  Israelite  is  to  do 
the  work  he  may  have  to  do;  on  the  seventh  he  must  not  work— it  is 
his  day  of  rest.  No  one  ever  supposed  it  could  go  further.  I  fancy 
few  among  Israel  worked  every  day  in  the  six.  If  such  had  been  the 
commandment  it  would  have  been  hard  indeed.     But  it  was  intended 

to  set  apart  a  day  of  rest,  and  not  to  give  a  command  to  labor 

There  is,  therefore,  no  violation  of  the  Hebrew's  religion,  in  requiring 
him  to  cease  from  labor  on  another  day  than  his  Sabbath,  if  he  be 
left  free  to  observe  the  latter  according  to  his  religion."  (2  Strobhart, 
508.) 

In  Hellams  v.  Abercrombie.  in  which  the  dispute  was  about  the 
validity  of  a  mortgage  executed  on  the  Lord's  day,  it  was  held  that 
since  the  law  forbids  exercising  any  worldly  labor,  etc.,  of  one's  ordin- 
ary calling  on  the  Lord's  day,  the  execution  of  a  mortgage,  not  being 
fhe  ordinary  calling  of  the  parties,  is  not  forbidden.  (15  S.  C.  119, 
1880.) 

While  the  Supreme  Court  of  the  State  of  South  Carolina  has 
upheld  the  Sabbath  law  in  opinions  of  considerable  force,  it  is 
clear  that  the  law  needs  to  be  strengthened. 

The  weakness  of  the  statute  that  prohibits  labor,  business  or 
work  of  one's  ordinary  calling-  only  is  again  apparent ;  the  penalty 
of  one  dollar  for  violating  the  law  against  doing  such  work  is 
inadequate ;  the  law  relating  to  railroads  allows  too  much 
latitude ;  while  the  opinion  declaring  that  notices  in  Sunday 
newspapers  are  lawful  does  not  seem  to  be  based  on  any  section 
of  the  law,  it  would  be  well  to  amend  the  law  so  as  to  render 
such  opinions  impossible. 


CHAPTER   III. 

LEGISLATION  WITH  STRONG  PROHIBITORY 

CLAUSES  AND  FEW  EXCEPTIONS  TO 

THEIR  APPLICATION. 

In  the  most  of  the  States  the  limitation  of  the  prohibitory 
clause  in  the  Sabbath  law  to  labor,  business  or  work  of  one's 
ordinary  calling,  was,  at  an  early  day  removed,  and  the  prohibi- 
tion made  to  extend  to  all  worldly  occupations  whether  of  one's 
ordinary  calling  or  not.  There  is  a  large  number  of  such  States 
in  which  modern  efforts  to  weaken  the  law  by  multiplying  ex- 
ceptions to  its  application  have  met  with  very  little  success. 
This  class  will  now  be  considered. 

ARKANSAS.      (1904.) 

Article  67,  Chapter  48  of  the  Criminal  law  of  Arkansas  is- 
entitled  "Sabbath  Breaking."     It  is  as  follows : 

"2030.  Every  person  who  shall,  on  the  Sabbath  day  or  Sunday  be 
found  laboring,  or  shall  compel  his  apprentice  or  servant  to  labor  or 
to  perform  other  service  than  customary  household  duties,  of  daily 
necessity,  comfort  or  charity,  on  conviction  thereof,  shall  be  fined  one 
dollar  for  each  separate  offense. 

"2031.  Every  apprentice  or  servant  compelled  to  labor  on  Sunday 
shall  be  deemed  a  separate  offense  of  the  master. 

"2032.  The  provisions  of  this  act  shall  not  apply  to  steamboats, 
and  other  vessels  navigating  the  waters  of  the  State,  nor  to  such  man- 
ufacturing establishments  as  require  to  be  kept  in  continual  operation. 

"2033.  No  person  who  from  religious  belief  keeps  any  other  day 
than  the  first  day  of  the  week  as  the  Sabbath  shall  be  required  to  ob- 
serve the  first  day  of  the  week,  usually  called  the  Christian  Sabbath, 
and  shall  not  be  liable  to  the  penalties  enacted  against  Sabbath  break- 

28 


ARKANSAS.  29 

ing.  Provided,  no  store  or  saloon  shall  be  kept  open  or  business  carried 
on  there  on  the  Christian  Sabbath;  and,  provided,  further,  no  person 
so  observing  any  other  day  shall  disturb  any  religious  congregation 
by  his  avocations  or  employments. 

"2034.  Every  person  who  shall  on  Sunday,  keep  open  any  store  or 
retail  any  goods,  wares  and  merchandise,  or  keep  open  any  dram-shop 
)r  grocery,  or  shall  keep  the  doors  of  the  same  so  as  to  afford  ingress 
or  egress,  or  sell  or  retail  any  spirits  or  wine,  shall,  on  conviction 
thereof,  be  fined  in  any  sum  not  less  than  twenty-five  dollars  nor  more 
than  one  hundred  dollars. 

"2035.  Charity  or  necessity  on  the  part  of  the  customer  may  be 
shown  in  justification  of  the  violation  of  the  last  preceding  section. 

"2036.  Every  person  who  shall,  on  the  Christian  Sabbath  or  Sun- 
day, be  engaged  in  the  running  of  any  single  horse,  for  any  bet  or 
wager  on  the  speed  of  such  horse,  or  for  pastime,  or  for  amusement 
without  any  bet  or  wager,  or  shall  be  engaged  in  any  cock  fight,  on 
any  bet  or  wager,  or  for  pastime,  without  bet  or  wager  shall,  on  con- 
viction thereof,  be  fined  in  any  sum  not  exceeding  one  hundred  dol- 
lars, nor  less  than  twenty  dollars. 

"2037.  Every  person  who  shall,  on  the  Christian  Sabbath  or  Sun- 
day, be  engaged  in  any  game  of  brag,  bluff,  poker,  seven-up,  three-up, 
twenty-one,  vingtun,  thirteen  cards,  the  odd  trick,  forty-five,  whist,  or  at 
any  other  game  at  cards  known  by  any  name  now  known  to  the  laws, 
or  with  any  other  new  name,  for  any  bet  or  wager  on  such  game,  or 
for  amusement  without  any  bet  or  wager,  shall,  on  conviction  thereof, 
be  fined  in  any  sum  not  less  than  twenty-five  dollars,  nor  more  than 
fifty  dollars. 

"2038.  If  any  person  shall  be  found  hunting  with  a  gun,  with  in- 
tention to  kill  game,  or  shooting  for  amusement,  on  the  Sabbath  day, 
on  conviction  thereof,  he  shall  be  fined  in  any  sum  not  less  than  five 
nor  more  than  twenty-five  dollars  for  each  separate  offense. 

"2039.  If  such  offense  shall  be  committed  by  a  minor,  under  the 
age  of  twenty-one  years,  and  it  shall  be  made  to  appear  that  the  offense 
was  committed  by  or  with  the  consent  or  approbation  of  the  parent  or 
guardian  of  said  minor,  then  such  parent  or  guardian,  as  aforesaid, 
shall  also  be  fined  according  to  the  provisions  of  Section  2038. 

"2040.  If  any  person  shall  be  engaged  in  running  a  horse-race  on 
the  day  known  as  the  Christian  Sabbath  or  Sunday,  on  a  bet  or  wager, 
or  for  sport  or  pastime,  with  or  without  such  bet  or  wager, 
he  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  there- 
of, shall  be  fined  in  any  sum  not  less  than  twenty-five  nor  more  than 
one  hundred  dollars." 

"2041.  It  shall  be  unlawful  for  any  club,  person  or  persons  to  en- 
gage in  any  game  or  play  of  base-ball  on  the  Christian  Sabbath  or  Sun- 
day. 

"2042.  All  persons  violating  the  preceding  section  shall  be  guilty 
of  a  misdemeanor,  and,  upon  conviction  thereof,  shall  be  fined  in  any 


30  ARKANSAS. 

sum  not  less  than  ten  dollars,  nor  more  than  twenty  dollars  in  each 
case."     (pp.  566-568.) 

A  summons,  order  for  a  provisional  remedy,  order  for  attachment, 
or  for  the  delivery  of  property,  subpoena,  notice,  order  of  arrest  or  of 
injunction,  may  be  issued  on  the  Sabbath  when  it  is  necessary  to  pro- 
tect the  rights  and  interests  involved. 

The  constitutionality  of  the  Sabbath  law  of  Arkansas  was 
tested  in  1850,  in  the  case  of  Shover  v.  State.  The  counts  in 
the  indictment  were,  keeping  open  a  grocery  by  force  of  arms 
and  retailing  spirits  on  the  Sabbath. 

Chief  Justice  Johnson,  in  upholding  the  constitutionality  of 

law,  said : 

"If  the  act  is  unauthorized  by  the  Constitution,  it  must  arise  from 
the  fad  that  it  interferes  with  the  rights  of  conscience  which  are  se- 
cured to  all  by  the  Declaration  of  Independence.  A  portion  of  thosa 
rights  consists  in  freedom  to  worship  Almighty  God  according  to  the 
dictat-es  of  every  one's  conscience,  and  in  not  being  compelled  to  at- 
tend, erect,  or  support,  any  place  of  worship,  or  to  maintain  any  min- 
istry against  their  consent.  The  act  in  question  cannot,  with  any  de- 
gree of  propriety,  be  said  to  trench  upon  any  one  of  the  rights  thus 
secured.  By  reserving  to  every  individual  the  sacred  and  in-defeasible 
rights  of  conscience,  the  convention  most  certainly  did  not  intend  to 
leave  it  in  hie  power  to  do  suiqIi  acts  as  are  evil  in  themselves  a»d 
necessarily  calculated  to  bring  into  contempt  the  most  venerable  and 
sacred  institution's  of  the  country. 

"Sunday,  or  the  Sabbath,  is  properly  and  emphatically  called  the 
Lord's  day,  and  is  one  amongst  the  first  and  most  sacred  institutions 
of  the  Christian  religion.  This  system  of  religion  is  recognized  as  con- 
stituting a  part  and  parcel  of  the  common  law,  and  as  sivch  all  of  the 
institutions  growing  out  of  it  or,  in  any  way  connected  with  it,  in 
«ase  they  shall  not  be  found  to  interfere  with  the  rights  of  conscience, 
are  entitled  to  the  most  profound  respect,  and  can  ri^itfully  claim  the 
protection  of  the  lawmaking  power  of  the  State.  We  think  it  will  readily 
be  conceded  that  the  practice,  against  which  the  act  is  directed,  is  a 
great  and  crying  vice,  and  that,  in  view  of  its  exceedingly  deleterious 
effects  upon  the  body  politic,  there  cannot  be  a  doubt  that  it  falls  ap- 
propriately under  the  cognizance  of  the  law-making  power."  (Shover 
V.  State,  10  Ark,  259,  1850.) 

In  Stockton  v.  the  State  in  which  Stockton  was  indicted  for 
playing  cards  on  the  Sabbath,  the  Supreme  CcuLirt,  in  affirmiwg 
the  decision  of  the  Circuit  Court  of  Tell  County  finding  him 
guiltj  as  indicted,  laid  stress  upon  the  Divine  authority  for  th@ 
law.     The  following  language  was  used : 

"The  object  of  the  Statute  was  to  prohibit  the  desecration  of  the 
Sabbath  by  engaging  in  the  vicious  employment  of  playing  cauds  on 


ARKANSAS.  •  31 

that  day,  which  is  set  apart  by  Divine  appointment,  as  well  as  by  the 
law  of  the  land  for  other  and  better  engagements;  and  whether  the  de- 
fendant play  for  a  wager  or  amusement,  he  is  alike  guilty  of  a  dese- 
cration of  the  Sabbath,  and  consequently  of  a  violation  of  the  law. 
The  playing  of  cards  upon  that  day  is  the  gist  of  the  offense,  and 
whether  the  playing  be  for  a  wager,  or  for  amusement  is  not  material. 
No  matter  what  the  purpose  of  the  game  may  be,  il  is  a  desecration 
of  the  day,  and  vicious  to  public  morals  in  its  tendencies."  (18  Ark. 
18,  1S5G. 

In  1886  the  Supreme  Court  of  Arkansas,  in  Scales  v.  State, 
upheld  the  constitutionality  of  the  law  whether  or  not  it  excepts 
from  its  operation,  cither  wholly  or  in  part,  those  who  keep 
another  day.     The  Court  said  : 

"This  observance  of  Sunday  as  a  day  of  refrainment  from  secular 
business  has  always  been  required  of  tlxe  people  generally,  without 
reference  to  creed,  and  they  continue  to  so  observe  it  without  com- 
plaint that,  as  a  municipal  institution,  it  violates  any  of  their  consti- 
tutional or  religious  rights.  .  .  .  The  law  which  imposes  the  penalty 
operates  upon  all  alike,  and  interferes  with  no  man's  religious  belief, 
for  in  limiting  the  prohibition  to  secular  pursuits  it  leaves  religious 
profession  and  worship  free."     (47  Ark.  476.) 

The  most  of  the  opinions  given  by  way  of  interpretation  of 
the  law  are  judicious.  The  following  are  sufiftcicMt  to  show  the 
character  of  such  opinions  : 

"When  a  contract  for  a  sale  of  land  is  m.ade  on  a  week  day,  and 
a  note  for  the  purchase  money  executed  on  Sunday,  the  vendor  may 
recover  the  purchase  money,  notwithstanding  the  invalidity  at  the 
note."     (Tucker,  v.  West  et  al,  29  Ark.  386,  1874.) 

•'Although  a  contract  for  the  hire  of  a  horse  on  Sunday  is  void, 
the  hirer  will  be  liable  in  tort  for  any  Injury  to  the  horse  from  misuse 
or  carelessness,  and  will  be  held  to  the  highest  degi'ee  of  care."  (Stew- 
art V.  Davis.  31  Ark.  518,  1877.) 

"One  who  keeps  a  saloon  open  on  the  Sabbath  is  guilty  whether  he 
is  the  owner  or  proprietor  or  not."  (Marre  v.  The  State,  36  Ark. 
222,  1880.) 

•'The  statute  with  respect  to  labor  applies  to  the  work  of  a  barber" 
(State  V.  Frederick,  45  Ark.  347,  1885.) 

•'The  manager  of  a  public  theater  who  sells  tickets  for,  and  super- 
intends an  entertainment  on  Sunday,  is  guilty  of  laboring  on  Sunday 
within  the  meaning  of  section  1883,  (2030)." 

•'The  statute  against  open  stores  applies  to  butcher  sheps."  (Petty 
V.  The  State,  5S  Ark.  1,  1893.) 

'The  selection  of  the  first  day  of  the  week  for  putting  in  new  tele- 
graph instruments  at  a  railroad  station  is  not  justified  by  the  fact  that 
there  are  fewer  trains  running  and  as  a  consequence  there  is  less  dan- 


32  CONNECTICUT. 

ger  of  collision  than  on  other  days."     (Cleary  v.  The  State,  56  Ark. 
124.  1892.) 

Labor  cannot  be  lawfully  performed  on  the  Sabbath  merely  to  add 
to  the  accumulations  of  a  business  already  lucrative. 

There  are  few  States  whose  Sabbath  laws  deserve  more 
praise  and  less  criticism  than  that  of  Arkansas.  The  exceptions 
of  section  2032,  however,  in  favor  of  steamboats  and  manu- 
facturing establishments  requiring  to  be  kept  in  continual  opera- 
tion, might  easily  be  taken  advantage  of  for  the  carrying  on  of 
iDOth  business  and  pleasure. 

The  ringing  deliverances  of  the  Supreme  Court  in  uphold- 
ing the  constitutionality  of  the  statute  because  the  Divine  will  is 
back  of  it  and  because  Christianity  is  part  of  the  common  law 
are  deserving  of  high  praise. 

CONNECTICUT.     (1902). 

Chapter  89  of  the  revised  statutes  of  Connecticut  is  entitled 
"Ofifences  against  Puplic  Policy."  The  sestions  relating  to  the 
Sabbath  are  these : 

"1369.  Every  person  who  shall  do  any  secular  business  or  labor, 
except  works  of  necessity  or  mercy,  or  keep  open  any  shop,  workhouse, 
or  manufacturing  or  mechanical  establishment,  or  expose  any  property 
for  sale,  or  engage  in  any  sport  between  twelve  o'clock  Saturday  night 
and  twelve  o'clock  Sunday  night,  shall  be  fined  not  more  than  fifty  dol- 
lars. 

"1370.  Every  person  who  shall  be  present  at  any  concert  of 
music,  dancing,  or  other  public  diversion  on  Sunday,  or  on  the  evening 
thereof  shall  be  fined  not  more  than  forty  dollars. 

"1371.  Prosecutions  for  violations  of  the  two  preceding  sections 
shall  be  exhibited  within  one  month  after  the  commission  of  the  of- 
fense. 

"1372.  No  person  who  conscientiously  believes  that  the  seventh 
day  of  the  week  ought  to  be  observed  as  the  Sabbath,  and  actually  re- 
frains from  secular  business  and  labor  on  that  day,  shall  be  liable  to 
prosecution  for  performing  secular  business  and  labor  on  the  Sabbath, 
provided  he  disturbs  no  other  person  while  attending  public  worship." 
(pp.  384,  385.) 

"3132.  "No  person  shaH  on  Sunday  shoot  or  hunt,  or  have  in  pos- 
session in  the  open  air  the  implements  for  shooting,     (p.  788.) 

"2703.  Every  person  who  by  himself,  his  servant,  or  his  agent, 
between  the  hours  of  twelve  o'clock  on  Saturday  night  and  twelve 
o'clock  on  Sunday  night  next  following,  shall  sell  or  expose  for  sale 
any  spirituous  or  intoxicating  liquors,  or  shall  keep  open  any  place  of 


CONNECTICUT.  33 

any  kind  or  description  in  which  spirituous  and  intoxicating  liquors 
are  at  any  time  sold  or  exposed  for  sale,  or  in  which  any  sports  or 
games  of  chance  are  at  any  time  carried  on  or  allowed,  or  are  reputed 
to  be  so  carried  on  or  allowed,  shall  be  subject  to  the  penalties  of 
section  2712,  (a  fine  of  not  less  than  ten  nor  more  than  two  hundred 
dollars  for  the  first  offense  and  for  each  subsequent  offense  the  same 
fine  and  imprisonment  not  less  than  ten  days  nor  more  than  six 
months) ;  but  this  section  shall  not  apply  to  sales  under  a  druggist's 
license,    (p.  95.) 

The  following  sections  relating  to  railroads  were  added  in  1SS7: 

"3749.  No  railroad  company  shall  run  any  train  on  any  road  oper- 
ated by  it  within  this  State,  between  sunrise  and  sunset  on  Sunday, 
except  for  necessity  or  mercy;  provided,  that  it  may  run  trains  carry- 
ing the  United  States  mail,  and  such  other  trains  or  classes  of  trains 
as  may  be  authorized  by  the  Railroad  Commissioners  on  application 
made  to  them  on  the  ground  that  the  same  are  required  by  the  public 
■necessity,  or  for  the  preservation  of  freight. 

"3750.  No  such  company  shall  permit  the  handling,  the  loading, 
or  the  unloading,  of  freight  on  any  road  operated  by  it,  or  at  any  of 
its  depots  or  stations  within  this  State,  between  sunrise  and  sunset 
on  Sundaj',  except  from  necessity  or  mercy. 

"3751.  Every  such  company  which  shall  violate  any  of  the  pro- 
visions of  the  two  preceding  sections  shall  forfeit  to  the  State  the 
sum  of  two  hundred  and  fifty  dollars  for  each  violation. 

"3752.  No  such  company  shall  transport  passengers,  on  Sunday, 
upon  any  train  deemed  necessary  according  to  the  intention  of  section 
■3749,  for  less  than  the  highest  regular  fare  collected  on  week-days, 
provided  that  commutation,  season,  and  mileage  tickets  may  be  used 
on  Sunday.  No  such  company  shall  issue  or  accept  for  any  travel  on 
said  day  excursion  or  other  special  bargain  tickets.  Every  company 
which  shall  violate  any  provision  of  this  section  shall  forfeit  to  the 
State  fifty  dollars  for  each  violation."     (p.  934.) 

In  1893  the  following  relating  to  street  railways  was  enacted: 

"No  law  affecting  travel,  business  or  labor  on  Sunday  or  the  oper- 
ation on  Sunday  of  any  railroad  or  railway,  shall  apply  to  any  railroad 
company  or  street  railway  company  so  as  to  prohibit  or  limit  the  oper- 
ation on  Sunday  of  electi'ic  cars."     (pp.   960,  961.) 

"3753.  The  provisions  of  Sections  3749,  3750,  3751  and  3752 
shall  not  affect  statutes  which  prohibit  secular  work  or  recreation  on 
Sunday,  except  so  far  as  they  may  be  found  in  their  operation  to  be 
inconsistent  with  them."     (p.  934.) 

The  Stipreme  Court  of  Connectictit  has  upheld  the  law  in 
the  following  terms : 

"The  prohibition  on  Sunday,  of  any  sport  or  recreation  which  in- 
terferes with  the  preservation  of  public  peace  and  order,  or  the  enjoy- 
ment of  appropriate  and  religious  observance  of  that  day,  is   clearly 


34 


DEL  A  WARE. 


■within  the  power  of  the  legislature."     (State  v.  Miller,  69  Conn.  373,. 
1896.) 

The  interpretation  of  che  law  as  it  applies  to  contracts  made 
on  the  first  day  of  the  week  has  frequently  been  given  by  the 
Supreme  Court  of  this  State.  The  following  are  the  most  im- 
portant opinions  relating  to  this  matter : 

A  note  made  payable  on  Sunday,  in  express  terms,  is  void,  because- 
it  is  a  contract  to  do  an  unlawful  thing.  (Avery  v.  Stewart,  2  Day 
73,  1816.) 

A  loan  of  money  made  on  the  Lord's  day  cannot  be  recovered. 
(Finney  v.  Donahue,  35  Conn.  216,  1868.) 

A  contract  made  on  Sabbath  is  void,  although  the  price  of  the  pur- 
chase may  not  be  paid  till  Monday.  If  there  is  fraud  the  purchaser 
cannot  recover.     (Grant  v.  McGrath,  56,  Conn.  335,  1888.) 

If  negotiations  are  begun  on  Sabbath  which  result  in  a  written 
guaranty  on  another  day,  the  contract  is  valid.  (Tyler  v.  Waddington, 
58  Conn.  376,  1890.) 

If  personal  injuries  are  suffered  by  persons  riding  on  street  cars 
for  pleasure  on  Sabbath,  such  injuries  being  the  result  of  the  negli- 
gence of  the  street  car  company's  servants,  they  can  recover.  (66 
Conn.  274,  1895.) 

The  law  of  this  State  is  defective  in  permitting  those  who 
observe  the  seventh  day  of  the  week  as  the  Sabbath  to  engage  in 
both  business  and  labor  on  the  Lord's  day.  It  is  common  to 
permit  labor  by  such  persons,  but  to  permit  business  is  unusual. 

The  law  is  defective  also  in  the  liberty  it  allows  railroad  and 
street  car  companies.  In  other  respects  it  is  an  excellent  statute 
and  is  well  sustained  by  the  courts. 

DELAWARE.     (1893). 

Chapter  131  of  the  statutes  of  Delaware  is  entitled  "Offences 
against  Religion,  Morality  and  Decency."  Section  4  relates  to 
"Sabbath  breaking."     It  is  as  follows : 

"If  any  person  shall  perform  any  worldly  employment,  labor,  or 
business,  on  the  Sabbath  day,  (works  of  necessity  and  charity  ex- 
cepted), he  shall  be  fined  four  dollars,  and  on  failure  to  pay  such  fine 
and  costs,  shall  be  imprisoned  not  exceeding  twenty-four  hours." 

"If  any  carrier,  pedler,  wagoner,  or  driver  of  any  public  stage,  or 
carriage,  or  any  carter,  butcher,  or  drover,  with  his  horse,  pack, 
wagon,  stage,  carriage,  cart,  or  drove,  shall  travel,  or  drive,  upon  the 
Sabbath  day;  or  if  any  retailer  of  goods  shall  expose  the  same  to  sale 
on  the  Sabbath;  he  shall  be  fined  eight  dollars,  and  on  failure  to  pay 
such  fine  and  costs  shall  be    imprisoned    not    exceeding    twenty-four 


DERAWARE.  35 

hours.     Any  justice  of  the  peace  may  stop  any  such  person  so  travel- 
ing OH  the  Sabbath,  and  detain  him  until  the  next  day." 

"If  any  person  shall  be  guilty  of  fishing,  fowling,  horse-racing 
cock-fighting,  or  hunting  game  on  the  Sabbath  day,  he  shall  be  fined 
four  dollars,  and  on  failure  to  pay  such  fine  and  costs,  shall  be  im- 
prisoned as  aforesaid." 

"If  any  number  of  persons  shall  assemple  to  game,  play  or  dance, 
on  the  Sabbath  day,  and  shall  engage,  or  assist,  in  such  game,  play  or 
dance,  every  such  person  shall  be  fined  four  dollars,  and  on  failure  to 
pay  such  fine  and  costs,  shall  be  imprisoned  as  aforesaid." 

"Any  justice  of  the  peace  of  the  county  shall  have  jurisdiction  and 
cognizance  of  the  offenses  mentioned  in  this  section."     (p.  953.) 

In  1S44  the  Court  of  Errors  and  Appeals  held  that  the  furnishing 
of  liquor  to  guests  by  an  inn  keeper  is  not  a  violation  of  law,  but  such 
inn  keeper  may  not  keep  an  open  bar  and  allow  persons  to  assemble 
in  the  bar-room  to  drink  and  tipple  and  profane  the  sanctity  of  the 
day,  and  by  their  evil  example  destroy  the  morals  of  the  community 
and  the  best  interests  of  societJ^  '"The  keeper  of  an  inn,  tavern,  or 
house  of  entertainment,  who  conducts  hin's-elf  in  such  a  manner.  .  . 
as  profanes  the  Lord's  day,  or  violates  public  order  and  decorum,  or 
shocks  the  religious  sense  or  feelings  of  the  neighborhood,  is  guilty 
of  a  nuisance  at  common  law,  and  may  be  indicted,  fined,  imprisoned, 
and  his  house  suppressed,  according  to  the  aggravated  nature  or  enor- 
mity of  his  offense."     (4  Del.  132,  Hall  v.  the  State.) 

As  to  contracts  made  on  the  Sabbath  the  following  decision  was 
rendered  in  1897:  "In  all  contracts  made  on  the  Sabbath,  as  the 
parties  are  pari  delicto,  neither  can  assert  rights  thereunder;  the 
policy  of  the  law  is  that  of  absolute  non-action.  It  leaves  the  parties 
exactly  where  they  happen  to  be.  The  result  is  that  the  contract  being 
executory  is  for  all  practical  purposes  void.  Yet  if  one  person  re- 
ceives the  benefit  of  the  labor  of  another  thereunder,  the  law  places  the 
duty  upon  him  to  pay  for  it."  (Spahn  v.  Willman,  Pennewill's  Del. 
Reports,  Vol.  1,  p.  125.)  A  note  made  on  Sabbath,  but  delivered  on  an- 
other day  is  valid.     (Terry  v.  Piatt,  1  Penn.  Del.  Rep.,  Vol.  1.  p.  185.) 

The  law  of  this  State  is  hrief  but  comprehensive.  The 
penalty,  however,  is  mtich  too  light  and  has  a  weakening  effect. 
The  judicial  opinions  are  few,  but  what  there  are  give  good  sup- 
port to  the  law. 

FLORIDA.    (1S92). 

The  sections  of  the  F'lorida  law  relating  to  the  Sabbath  are 
entitle^d,  "Sunday  law,"  and  are  as  follows: 

"2638.  Whoever  follows  any  pursuit,  business  or  trade  on  Suntlay 
either  by  manual  labor  or  with  animal  or  mechanical  power,  except 


36  FLORIDA. 

tbe  same  be  work  of  necessity,  shall  be  punished  by  a  fine  not  exceed- 
ing fifty  dollars. 

"2639.  Whoever  keeps  open  store  or  disposes  of  any  wares,  mer- 
chandise, goods  or  chattels  on  Sunday,  or  sells  or  barters  the  same, 
shall  be  punished  by  a  fine  not  exceeding  fifty  dollars.  In  cases  of 
emergency  or  necessity,  however,  merchants,  shop-keepers,  and  others 
may  dispose  of  the  comforts  and  necessaries  of  life  to  customers,  with- 
out keeping  open  doors. 

"2640.  Whoever  employs  his  apprentice  or  servant  in  labor  or 
other  business  on  Sunday,  except  it  be  in  the  ordinary  household  busi- 
ness of  daily  necessity,  or  other  work  of  necessity  or  charity,  shall  be 
punished  by  a  fine  not  exceeding  ten  dollars  for  every  such   offense. 

"2641.  Whoever  uses  firearms  by  hunting  game  or  firing  at  tar- 
gets upon  Sunday  shall  be  punished  by  imprisonment  not  exceeding 
twenty  days,  or  by  fine  not  exceeding  twenty-five  dollars." 

Section  1025  makes  void  the  execution  on  Sabbath  of  any  writ, 
order,  judgment  or  deciee,  except  when  it  appears  on  the  sworn  tes- 
timony of  two  respectable  witnesses,  that  any  person  liable  to  any  such 
writ,  etc.,  intends  to  escape  from  the  State  under  cover  of  protection 
of  Sunday. 

Section  3037  provides  for  the  proper  oljservance  of  the  Sabbath  in 
the  State  Prison,  and  for  the  instruction  of  the  inmates  in  their  moral 
and  religious  duties. 

"Fishing  for  shad  between  sundown  on  Saturday  afternoon  and 
sunrise  on  Monday  morning  of  every  week  is  punishable  by  a  fine  not 
exceeding  one  hundred  dollars,  and  by  confiscation  of  the  boat  and 
fishing  tackle  used  in  such  unlawful  acts."     (p.  S48.) 

The  Sabbath  law  of  Florida  is  brief  and  pointed  and  has 
many  excellent  features.  The  penalties  generally  are  adeqtiate. 
Few  cases  have  reached  the  Supreme  Court  and  in  the  opinions 
rendered  there  is  btit  little  relating  to  the  great  points  considered 
in  thL^  exhibit. 

IOWA.    (iS88  1902). 

Chapter  12,  section  5438,  of  the  criminal  code  of  Iowa  is 
eiatitled  "Breach  of  Sabbath."     It  is  as  follows: 

"If  any  person  be  found  on  the  first  day  of  the  week,  commonly 
called  Sabbath,  engaged  in  any  riot,  fighting,  or  offering  to  fight,  or 
hunting,  shooting,  carrying  fire-arms,  fishing,  horse-racing,  dancing,  or 
in  any  manner  disturbing  any  worshipping  assembly,  or  private 
family;  or  in  buying  or  selling  property  of  any  kind,  or  in  any  labor, 
the  work  of  necessity  and  charity  only  excepted,  every  person  so  of- 
fending shall,  on  conviction,  be  fined  in  a  sum  not  more  than  five  dol- 
la-^  nor  less  than  oae  dollar,  to  be  recovered  before  any  Justice  of  the 


TOW  A.  37 

peace  in  the  county  where  such  offense  is  committed,  and  shaU  be 
committed  to  the  jail  of  said  county  until  the  said  fine,  together  with 
the  costs  of  prosecution,  shall  be  paid;  but  nothing  herein  contained 
shall  be  construed  to  extend  to  those  who  conscientiously  observe  the 
seventh  day  of  the  week,  as  the  Sabbath,  or  to  prevent  persons  trav- 
eling, or  families  emigrating,  from  pursuing  their  journey,  or  keepers 
of  toll-bridges,  toll-gates,  and  ferry-men  from  attending  the  same." 
(pp.  1574,  1575.) 

Other  sections  declare  that  the  issuing  and  serving  of  attachments, 
and  of  processes,  and  the  issuing  of  executions,  on  the  Sabbath,  are 
permissible  when  necessary. 

When  the  case  of  Davis  v.  Fish  was  l)cfore  the  District 
Cotirt  the  charge  was  given  the  Jtiry  and  the  verdict  rendered 
on  the  Sabbath.  The  case  was  carried  to  the  Supreme  Court, 
\vhich  declared  such  proceedings  to  be  utterly  void.  The  Court 
said : 

"A  day  so  sacred,  set  apart  for  rest  by  the  voice  of  wisdom,  ex- 
perience, and  nec96sity;  a  day  established  by  laws  both  human  and 
divine,  for  public  worship  and  private  devotion,  should  be  held  in  es- 
pecial veneration  by  legal  tribunals.  Courts  of  justice  should  at  least, 
by  their  practice  and  decisions,  maintain  the  sanctity  of  that  time- 
honored,  and  heaven-appointed  institution."     (1  Iowa,  406,  1S4S.) 

In  this  opinion  the  Court  recognizes,  not  only  the  sacred 
character  of  the  day,  but  also  the  fact  that  it  is  an  institution  of 
Divine  appointment. 

While  there  are  no  ether  decisions  in  this  State  which  deal 
with  the  constitutional  basis  of  the  law,  there  are  a  number  that 
have  value  in  the  proper  interpretation  of  the  law. 

'Contracts  made  on  the  Sabbath  day  are  void.  The  general  rule 
is  that  a  contract  made  in  violation  of  a  statute  and  against  the  policy 
of  the  State,  whether  malum  prohibitum  or  malum  in  se,  is  void,  and 
cannot  be  enforced  by  action.  Contracts  for  the  sale  of  property  do 
not  come  within  the  exceptions  and  are  therefore  illegal.  The  plea 
that  as  the  statute  does  not  in  express  terms  prohibit  such  contracts 
but  only  im.poses  a  penalty  for  making  them,  they  cannot  be  treated 
as  void,  will  not  hold.  The  authorities  are  abundant  that  a  penalty 
for  an  act  implies  a  prohibition.'  (Pike  v.  King,  IG  la.  49,  1864.) 
'Promissory  notes  executed  on  the  Lord's  day  are  void.  This  rule  holds 
good  with  reference  to  notes  executed  in  other  States  unless  it  is 
shown  that  the  laws  in  such  States  are  different  from  those  of  Iowa.' 
(Sayer  v.  Wheeler,  31  la.  112,  1870.) 

"Violators  of  the  Sabbath  law  frequently  plead  the  illegality  of 
contracts  made  on  tke  Sabbath  to  escape  certain  obligations.  Of 
course  those   who   do  this   have   no  regard   for  the  sacredness   of  the 


38  IOWA. 

day,  but  after  violating  the  law  in  carrying  on  worldly  business  with 
a  neighbor  plead  the  intervention  of  the  law  to  aid  them  in  wronging 
that  neighbor.  The  Iowa  records  present  a  number  of  such  cases. 
The  following  are  specimens:  Henry  Johns  sold  a  piece  of  land  to 
Mary  Skeels.  The  contract  was  drawn  and  delivered  on  the  Sabbath, 
but  bears  date  of  another  day.  Mary  Skeels  sold  the  land  to  Mr. 
Bailey  who  immediately  entered  into  possession.  Johns  sought  to  re- 
cover the  land.  His  only  plea  was  that  the  contract  was  made  on  the 
Sabbath  and  was  therefore  void.  The  Circuit  Court  of  Grundy  County 
awarded  him  possession  of  the  land,  but  this  was  reversed  by  the  Su- 
preme Court.     (45  la.  241,  1876.) 

A  case  of  a  different  kind  was  that  of  Gunderson  v.  Richardson, 
involving  a  horse  trade.  Two  men  traded  horses  on  the  Sabbath.  One 
of  them  afterwards  felt  that  he  had  been  cheated.  The  Supreme 
Court  held  that  he  could  not  recover  damages.  Both  parties  were  ac- 
tive participants  in  the  violation  of  the  law  and  the  law  leaves  them 
where  it  finds  them.     (56  Iowa,  56,  1881.) 

The  following  case  came  before  the  Supreme  Court  in  1882: 

A  man  was  riding  along  the  highway  on  a  business  errand.  A 
dog  frightened  his  horse  and  he  was  injured.  He  brought  suit  for 
damages.  The  plea  was  made  by  the  defendant  that  he  could  not  re- 
cover because  he  was  violating  the  law.     The  court  decided  otherwise. 

A  railroad  company  incurs  the  usual  penalty  for  running  trains  on 
the  Sabbath,  and  if  an  accident  occurs  whereby  damage  Is  done,  lia- 
bility will  be  determined  by  the  same  rules  as  if  it  had  occurred  on  a 
secular  day.     (Tingle  v.  C.  B.  &  Q.  R.  Co.  60  la.  333,  1882.) 

The  following  case  shows  to  what  extent  scoundrels  will  go  in 
pleading  the  Sabbath  law  to  shield  themselves  from  just  punishment. 
John  H.  Sherwood  was  tried  and  convicted  of  the  crime  of  forgery  be- 
lore  the  Pottawattamie  District  Court.  The  forged  note  was  drawn  on 
a  week  day  but  bore  the  date  of  Sabbath.  A  part  of  the  defense  was 
that  as  the  note  tore  the  date  of  Sabbath  it  was  therefore  void  and 
could  not  be  used  in  evidence.  The  Supreme  Court  said:  "A  note 
made  on  Sunday,  but  in  fact  delivered  on  a  week  day  Is  not  void.  .  .  . 
Now,  while  it  is  true  that  a  note  in  fact  made  and  delivered  on  Sun- 
day is  void,  and  could  not  be  used  in  evidence,  still,  in  a  civil  action, 
by  making  proper  averments  touching  a  mistake  in  the  date,  or  that 
it  was  in  fact  delivered  on  a  week  day  such  a  note  would  be  admissible 
in  evidence,  and  on  pi'oof  that  it  was  made  or  delivered  on  a  week  day, 
it  would  be  the  basis  of  a  legal  liability  against  a  genuine  maker.  .  .  . 
We  think  that  the  false  making  of  an  instrument  of  this  character, 
even  though  it  bear  date  of  Sunday,  may    be    a    forgery    under    our 

statute To  hold  otherwise  would  be  not  only  in  violation  of  the 

spirit  and  working  of  the  statute,  but  would  render  the  business  of  the 
forger  profitable  and  successful.     All  he  would  have  to  do  to  escape 


10  WA.  39 

liability  would  be  to  date  the  instrument  forged  on  Sunday."  (State 
V.  Sherwood,  90  la.  550,  1894.) 

The  opinions  here  quoted  bring  to  light  the  fact  that  the 
Sabbath  law  is  often  violated  in  the  making  of  contracts  and  no 
effort  made  to  punish  the  guilty  parties.  But  if  either  of  them 
wishes  to  break  the  contract  his  plea  is  its  illegality  because  made 
on  the  Sabbath.  Moreover  it  appears  that  disl*Dnest  people  take 
advantage  of  this  law  to  cheat  the  unsuspicious  and  then  take 
refuge  behind  the  fact  of  the  illegality  of  the  contract.  The  law 
should  be  so  framed  as  to  catch  all  such  rogues. 

The  Supreme  Court  of  Iowa  makes  the  following  statement 
of  a  question  that  has  been  before  the  courts  of  many  States  and 
variously  decided : 

"If  two  persons  are  engaged  in  the  violation  of  the  Sunday  law, 
and  one  is  injured  by  the  negligence  or  carelessness  of  the  other,  may 
the  injured  party  recover  if  he  did  not  otherwise,  by  his  own  negli- 
gence, contribute  to  produce  the  injury?"  The  Court  answers  as  fol- 
lows: "It  may  be  conceded  that  the  authorities  upon  this  are  in  con- 
flict: that  the  earlier  cases  in  some  of  the  New  England  States,  as 
well  as  many  later  cases,  have  gone  to  great  extremes  in  holding  that 
parties  who  were  injured  while  engaged  in  violating  the  Sunday  law 
could  not  recover  for  injuries  carelessly  or  negligently  inflicted  upon 
them  by  others.  The  unreasonableness  of  these  views  has  been  very 
justly  criticized  by  all  leading  text  writers  upon  the  subject,  and  has 
met  with  the  condemnation  of  the  courts  elsewhere.  .  .  .  We  do  not 
think  that  there  is  any  sufficient  reason  why,  if  two  persons  are  en- 
gaged in  violating  the  Sunday  law,  and  without  any  contributing  cause 
one  is  injured,  that  he  should  be  denied  recovery.  ...  To  so  hold 
would  be  offering  a  premium  to  negligence,  and  holding  out  as  an  in- 
ducement for  carelessness  the  fact  that   Sunday    violaters    owed    no 

duty  to  each  other  as  to  the  exercise  of  care  to  prevent  accidents 

Why  should  the  courts  add  to  the  violation  of  this  law  a  penalty  which 
the  law  itself  has  not  affixed?  If  one  violates  the  Sunday  law  he  is 
amendable  to  the  State — is  subject  to  the  punishment  inflicted  by 
statute."     (Gross  v.  Miller,  93  la.  72,  1894.) 

The  question  whether  subscriptions  for  religious  purposes, 
taken  on  Sabbath,  are  binding,  has  been  before  the  Supreme 
Cotirt  of  Iowa,  in  a  form  similar  to  that  in  which  it  came  before 
the  Supreme  Court  of  Indiana.  It  is  worthy  of  remark  that  this 
question  usually  is  raised,  not  by  some  one  who  is  zealous  for  the 
law,  but  by  some  one  who  has  given  a  subscription  to  help  pay 
a  church  debt  or  for  some  other  religious  purpose,  and  after- 


40  KiNSAS 

wards  tries  to  avoid  meeting  his  obligation.  Such  a  case  came 
before  the  Supreme  Court  of  Iowa  in  1899.     The  Court  said: 

"The  custom  of  taking  offerings  on  the  first  clay  of  the  week  has 
existed  from  time  immemorial,  and  no  one  has  supposed  this  to  be 
prohibited  by  statute.  If  not,  ought  receiving  promises  for  the  pay- 
ment of  larger  sums  be  deemed  condemned  thereby?  Otherwise  the 
deacons  or  others  in  passing  the  box  or  hat.  and  the  minister  in  direct- 
ing this  to  be  done,  are  amenable  to  the  penalties  of  the  law 

Taking  collections  and  subscriptions  to  carry  on  the  work  of  a  relig- 
ious organization  may  not,  strictly  speaking,  be  deemed  a  part  of  re- 
ligious worship;  but  these  are  means  for  its  support,  and  come  within 
the  exception  of  the  statute  prohibiting  any  labor,  except  that  of  ne- 
cessity or  charity."     (First  M.  E.  Church  v.  Donnell,  110  la.  5.) 

The  law  of  this  State  would  be  improved  by  dividing  it  intO' 
sections.  As  it  stands  the  exception  in  favor  of  seventh  day 
keepers  might  be  understood  as  giving  them  permission  to  do  on 
the  Lord's  day  everything  enumerated  in  the  law,  even  including 
rioting  and  fighting.  A  further  improvement  would  be  made 
by  specifically  prohibiting  amusements.  The  penalty  is  too 
small.     The  opinions  are  of  a  high  order  of  merit. 

KANSAS.     (1901). 

Article  7  of  Chapter  31  of  the  Kansas  Code  is  entitled 
"Crimes  against  Public  Morals  and  Decency."  The  sections  on 
the  Sabbath  follow : 

"2356.  Every  person  who  shall  either  labor  himself,  or  compel  his 
apprentice,  servant  or  any  other  person  under  his  charge  or  control,  to 
labor  or  perform  any  work  other  than  the  household  oiSces  of  daily 
necessity,  or  other  works  of  necessity  or  charity,  on  the  first  day  of 
the  week,  commonly  called  Sunday,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  fined  not  exceeding  twenty-five  dollars. 

"2257.  The  last  section  shall  not  extend  to  any  person  who  is  a 
member  of  a  religious  society,  by  whom  any  other  than  the  first  day 
of  the  week  is  observed  as  the  Sabbath,  so  that  he  observes  such  Sab- 
bath, nor  to  prohibit  any  ferry-man  from  crossing  passengers  on  any 
day  in  the  week. 

"2258.  Every  person  wlio  shall  be  convicted  of  horse-racing,  cock- 
fighting,  or  playing  at  cards  or  game  of  any  kind,  on  the  first  day  of 
the  week,  commonly  called  Sunday,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  fined  not  exceeding  fifty  dollars. 

"2259.  Every  person  who  shall  expose  for  sale  any  goods,  wares  or 
merchandise,  or  shall  keep  open  any  ale  or  porter  house,  grocery  or 
tippling  shop,  or  shall  sell  or  retail  any  fermented  or  distilled  liquor,  on 


MAINE.  41" 

the  first  day  of  the  week,  commonly  called  Sunday,  shall,  on  conviction, 
be  adjudged  guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty  dol- 
lars. 

"2260.  The  last  section  shall  not  be  construed  to  prevent  the  sale- 
of  any  drugs  or  medicines,  provisions  or  other  articles,  of  immediate 
necessity,     (p.  478). 

"2439.  Every  person  who  shall  engage  in  hunting  or  shooting  on 
the  first  day  of  the  week,  commonly  called  Sunday,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  be  fined  in  any  sum  not 
less  than  five  nor  more  than  twenty  dollars." 

The  constitutionality  of  the  Sabbath  law  was  passed  upon  by  the 
Supreme  Court  of  Kansas  in  1898  but  without  argument.  The  Court 
merely  declared  that  the  legislature  has  the  power  to  make  such  laws 
as  are  necessary  to  preserve  the  public  health  and  protect  the  public 
safetj',  and  that  this  statute  is  within  the  municipal  and  police  regula- 
tions. 

As  to  the  interpretation  of  the  law  the  Supreme  Court  has  held  that 
the  delivery  of  milk  by  a  dairyman  is  a  work  of  necessity,  since  the 
cows  must  be  milked,  and  the  milk  disposed  of  while  fresh.  It  is  a 
work  of  necessity  to  customers,  as  much  so  as  furnishing  medicines  to 
the  sick,  or  food  to  guests  at  a  hotel.  (City  of  Topeka  v.  Hempstead. 
58  Kan.  328,  1897). 

As  in  Iowa  so  in  Kansas  the  Supreme  Court  holds  that  any  one  in- 
jured while  working  on  the  Sabbath  and  it  is  shown  that  the  injury 
is  the  result  of  the  negligence  of  another  he  may  recover  damages. 
(Kansas  City  v.  Orr  62,  Kan.  61,  1900.) 

It  has  been  held  by  the  District  Court  of  Shawnee  County  that 
since  the  law  of  Kansas  is  similar  to  that  of  Missouri  the  opinion 
rendered  in  that  State  declaring  baseball  and  other  athletic  sports  to  be 
lawful  on  the  Sabbath  declares  the  proper  construction  of  the  law  in 
this  State. 

If  the  law  as  to  games  is  rightly  construed  this  is  the  princi- 
pal point  of  weakness.  As  courts  do  not  often  reverse  them- 
selves the  surest  remedy  is  a  statute  making  base  ball  and  other 
sports  unlawful. 

MAINE.     (1903). 

Chapter  125  of  the  statutes  of  ^Nlaine  is  entitled  "Disturbance 
of  religious  meetings  and  observance  of  the  Lord's  day."  The 
sections  relating  to  the  latter  are  the  following: 

"Sec.  25.  Whoever,  on  the  Lord's  day,  keeps  open  his  shop,  work- 
house, warehouse,  or  place  of  business,  travels,  or  does  any  work,  labor, 
or  business  on  that  day,  except  work  of  necessity  or  charity;  uses  any 
sport,  game  or  recreation;   or  is  present  at  any  dancing,  public  diver- 


42  MAINE. 

sion,  show  or  entertainment,  encouraging  the  same,  shall  be  punished 
by  fine  not  exceeding  ten  dollars. 

"26.  If  an  innholder  or  victualler,  on  the  Lord's  day,  suffers  any 
persons,  except  travelers,  strangers,  or  lodgers,  to  abide  in  his  house, 
yard,  or  field,  drinking  or  spending  their  time  idly,  at  play  or  doing  any 
secular  business,  except  works  of  charity  or  necessity  he  sh.an  be  pun- 
ished by  fine  not  exceeding  four  dollars  for  each  person  thus  suffered  to 
abide;  and  if  after  conviction  he  is  again  guilty,  by  fine  not  exceeding 
ten  dollars  for  each  offense,  and  upon  a  third  conviction,  he  shall  also 
be  incapable  of  holding  any  license;  and  every  person  so  abiding  shall 
be  fined  not  exceeding  four  dollars  for  each  offense. 

"27.  The  Lord's  day  includes  the  time  between  twelve  o'clock  on 
Saturday  night  and  twelve  o'clock  on  Sunday  night. 

"28.  No  person  conscientiously  believing  that  the  seventh  day  of 
the  week  ought  to  be  observed  as  the  Sabbath,  and  actually  refraining 
from  secular  business  and  labor  on  that  day,  is  liable  to  said  penalties 
for  doing  such  business  on  the  first  day  of  the  week,  if  he  does  not  dis- 
turb other  persons."     (pp.  933,  934). 

Chapter  82,  Section  115.  "No  deed,  contract,  receipt,  or  other  in- 
s,trument  in  wMting,  is  void  because  dated  on  the  Lord's  day  without 
other  proof  than  the  date  of  its  having  been  made  and  delivered  on  that 
day." 

"Sec.  116.  No  person  who  receives  a  valuable  consideration  for  a 
contract,  expressed  or  implied,  made  on  the  Lord's  day,  shall  defend  any 
action  upon  such  contract  on  the  ground  that  it  was  so  made,  until  he 
restores  such  consideration." 

"Chapter  30,  Sec.  27.  Sunday  is  a  close  time,  on  which  it  is  not 
lawful  to  hunt,  kill  or  destroy  game  or  birds  of  any  kind,  under  the 
penalties  imposed  therefor  during  other  clos.e  times;  but  the 
j)enalties  already  imposed  for  violation  of  the  Sunday  laws  are  not  re- 
pealed or  diminished." 

"Chapter  81,  Section  81.  No  person  shall  serve  or  execute  any  civil 
process  on  the  Lord's  day;  but  such  service  is  void,  and  the  person  exe- 
cuting it  is  liable  in  damages  to  the  party  aggrieved,  as  if  he  had  no 
•process." 

Formerly  the  law  of  Maine  uncompromisingly  made  all 
contracts  entered  into  on  the  Sabbath  void.  In  the  case  of 
Joseph  G.  Towle  v.  James  Larabee,  the  contention  was  about 
the  payment  of  a  note  made  on  the  Lord's  day,  given  and  re- 
■  ceived  as  the  consideration  for  a  horse,  the  contract  of  sale  being 
■entered  into  and  the  horse  delivered  on  that  day.  The  Supreme 
Court  held  that 

"The  law  will  not  assist  a  party  to  enforce  a  contract  made  in 
violation  of  its  own  provisions.  There  can  be  no  excuse  for  any  at- 
tempt to  destroy  by  a  forced  construction  of  language  the  effect  of  an 
>ena.ctment  so  suited  to  enable  man  to  derive  the  benefit  designed  to  be 


MAINE.  43 

bestowed  upon  him  by  Providence,  in  the  consecration  of  the  Lord's 
day  to  the  duty  of  doing  good  and  of  seeldng  endless  happiness,  in  ac- 
cordance with  the  precepts  of  the  gospel  of  our  Lord  Jesus  Christ." 
(26  Me.  464,  1847). 

In  the  case  Header  v.  White  it  was  held  that  a  loan  of  money 
made  on  the  Lord's  day  is  void,  and  that  the  promise  to  pay  cannot  be 
enforced.  The  Court  however  regretted  that  this  was  so.  "The  moral 
obligation  to  repay  money  loaned  is  the  same,  whether  the  loan  be 
made  on  one  day  or  on  another.  It  is  an  unfortunate  condition  of 
the  law  when  the  violator  of  its  commands  is  rewarded  by  it  for  such 
violation.  The  defendant  and  the  plaintiff  are  alike  guilty  of  a  viola- 
tion of  law;  the  former  in  soliciting  the  loan,  the  latter  in  yielding 
to  such  solicitation.  Both  are  liable  to  the  penalty  provided  by  the 
statute.  But  the  defendant,  while  guilty  with  the  plaintiff,  and  equally 
amenable  to  the  penalties  provided  by  the  statute,  is  rewarded  for  his 
wrong  doing  by  the  refusal  of  the  law  to  aid  in  the  enforcement  of  a 
debt  justly  due.  He  is  absolved  from  an  indebtedness  created  at  his 
own  instance;  while  his  associate  in  guilt,  who  yielded  to  his  wishes, 
is  liable  to  a  double  penalty,  that  inflicted  by  the  law,  and  that  arising 
from  the  non-payment  of  money  loaned  in  addition  to  the  sorrows  of 
a  regretful  conscience.     Juvenal  indignantly  says: 

"Multi 

Committunt  eadem;  diverse  crimina  fato; 

Ille  crucem  pretium  sceleris  tulit,*hic  diadema." 

So,  now  of  two  criminals  guilty  of  the  same  offense,  one  is  punished 
and  the  other  rewarded  by  the  law  which  creates  the  offense."  (66 
Me.  90,  1877). 

A  study  of  the  laws  of  the  different  States  and  of  the  cases  which 
have  come  before  the  Courts  show  that  no  little  wrong  has  been  done 
by  giving  the  law  this  construction,  and  the  tendency  has  doubtless 
been  to  render  such  a  law.  odious.  The  Legislature  of  Maine  provided 
a  remedy  for  the  evil  by  the  enactment  of  section  116  of  Chapter  82. 

While  the  law  of  Maine  forbids  the  service  of  a  civil  process  on  the 
Lord's  day  it  allows  the  service  of  a  criminal  process. 

A  promissory  note  given  on  Sabbath  is  void,  but  if  signed  on  that 
•day  and  not  delivered  till  another  day  it  is  valid. 

A  jury  may  reach  a  verdict  on  Sabbath  and  seal  it  up  to  be  record- 
■ed  on  the  next  court  day. 

The  law  of  this  State  as  thus  interpreted  by  the  Cotirts  is 
■deserving  of  high  praise.  The  exception,  however,  in  favor  of 
those  who  observe  Saturday  goes  too  far  in  allowing  them  to  do 
business  as  well  as  to  labor  on  the  Lord's  dav. 


44  MARYLAND. 

MARYLAND.      (1903), 

"Sabbath  Ereaking"  is  the  title  of  the  sections  of  article  27 
of  the  Maryland  Code  relating  to  "Crimes  and  Punishments." 
These  sections  are  as  follows : 

"365.  No  person  whatsoever  shall  Avork  or  do  any  bodily  labor  on 
the  Lord's  day,  commonly  called  Sunday;  and  no  person  having  chil- 
dren or  servants  shall  command,  or  wittingly  or  willingly  suffer  any 
of  them  to  do  any  manner  of  work  or  labor  on  the  Lord's  day  (works- 
of  necessity  and  charity  always  excepted),  nor  shall  suffer  or  permit 
any  children  or  servants  to  profane  the  Lord's  day  by  gaming,  fishing, 
fowling,  hunting  or  unlawful  pastime  or  recreation;  and  every  person 
transgressing  this  section  and  being  thereof  convicted  before  a  justice 
of  the  peace,  shall  forfeit  five  dollars,  to  be  applied  to  the  use  of  the 
county. 

"366.  No  person  in  this  State  shall  sell,  dispose  of,  barter,  or,  if  a 
dealer  in  any  one  or  more  of  the  articles  of  merchandise  in  this  section 
mentioned,  shall  give  away  on  the  Sabbath  day,  commonly  called  Sun- 
day, any  tobacco,  cigars,  candy,  soda  or  mineral  waters,  spirituous  or 
fermented  liquors,  cordials,  lager  beer,  wine,  cider  or  any  other  goods, 
wares  or  merchandise  whatsoever;  and  any  person  violating  any  one 
of  the  provisions  of  this  section  shall  be  liable  to  indictment  in  any 
Court  in  this  State  having  criminal  jurisdiction,  and  upon  conviction 
thereof  shall  be  fined  a  sum  not  less  than  twenty  nor  more  than  fifty 
dollars,  in  the  discretion  of  the  court,  for  the  first  offense,  and  if  con- 
victed a  second  time  for  a  violation  of  this  section,  the  person  or  per- 
sons so  offending  shall  be  fined  a  sum  not  less  than  fifty  nor  more  than 
five  hundred  dollars,  and  be  imprisoned  for  not  less  than  ten  nor  more 
than  thirty  days,  in  the  discretion  of  the  court,  and  his,  her  or  their 
license,  if  any  were  issued,  shall  be  declared  null  and  void  by 
the  judge  of  said  court;  and  it  shall  not  be  lawful  for  such  person  or 
persons,  to  obtain  another  license  for  the  period  of  twelve  months  from 
the  time  of  such  conviction,  nor  shall  a  license  be  obtained  by  any  oth- 
er person  or  persons  to  carry  on  such  business  on  the  premises  or  else- 
where, if  the  person,  so  as  aforesaid  convicted,  has  any  interest  what- 
ever therein,  or  shall  derive  any  profit  whatever  therefrom;  and  in 
case  of  being  convicted  more  than  twice  for  a  violation  of  this  sec- 
tion, such  person  or  persons  on  each  occasion  shall  be  fmprisoned  for 
not  less  than  thirty  nor  more  than  sixty  days,  and  fined  a  sum  not  less 
than  double  that  imposed  on  such  person  or  persons  on  the  last  preced- 
ing conviction;  and  his,  her  or  their  license,  if  any  were  issued,  shall 
be  declared  null  and  void  by  the  court,  and  no  new  license  shall  be  is- 
sued to  such  person  or  persons  for  a  period  of  two  years  from  the  time 
of  such  conviction,  nor  to  any  one  else  to  carry  on  said  business  where- 
in he  or  she  is  in  anywise  interested,  as  before  provided  for  the  second 
violation  of  the  provisions  of  this  section;   one  half  of  all  the  fines  ta 


3fABYLAND.  45 

be  imposed  under  this  section  shall  be  paid  to  the  State,  and  the  other 
■half  to  the  informer;  this  section  is  not  to  apply  to  milk  or  ice  dealers 
in  supplying  their  customers,  or  to  apothecaries  when  putting  up  bona 
fide  prescriptions. 

"367.  It  shall  not  be  lawful  to  keep  open  or  use  any  dancing-sa- 
loon, opera  house,  ten  pin  alley,  barber  saloon  or  ball  alley  within  the 
State  on  the  Sabbath  day,  commonly  called  Sunday;  and  any  person  or 
persons,  or  body  politic  or  corporate,  who  shall  violate  any  provisions 
•of  this  section,  or  cause  or  knowingly  permit  the  same  to  be  violated 
by  a  person  or  persons  in  his,  her  or  its  employ,  shall  be  liable  to  in- 
dictment in  any  court  of  this  State  having  criminal  jurisdiction,  and 
upon  conviction  thereof,  shall  be  fined  a  sum  not  less  than  fifty  dollars 
nor  more  than  one  hundred  dollars,  in  the  discretion  of  the  court,  for 
the  first  offense;  and  if  convicted  a  second  time  for  a  violation  of  thisi 
section,  the  person  or  persons,  or  body  politic  or  corporate,  shall  be 
fined  a  sum  not  less  than  one  hundred  nor  more  than  five  hundred  dol- 
lars; and  if  a  natural  person,  shall  be  imprisoned  not  less  than  ten  nor 
more  than  thirty  days  in  the  discretion  of  the  court;  and  in  the  case 
of  any  conviction  or  convictions  under  this  section,  subsequent  to  the 
second,  such  person  or  persons,  body  politic  or  corporate,  shall  be  fined 
OJi  each  occasion  a  sum  at  least  double  that  imposed  upon  him,  her, 
them  or  it  on  the  last  preceding  conviction;  and  if  a  natural  person, 
shall  be  imprisoned  not  less  than  thirty  nor  more  than  sixty  days,  in 
the  discretion  of  the  court;  all  fines  to  be  imposed  under  this  section 
shall  be  paid  to  the  State."     (pp.  690-692). 

,  Chapter  273,  290,  relates  to  hunting,  etc.,  and  is  as  follows:  "No 
person  whatsoever  shall  hunt  with  dog  or  gun  on  the  Lord's  day,  com- 
monly called  Sunday,  nor  shall  profane  the  Lord's  day  by  gunning,  hunt- 
ing, fowling,  or  by  shooting  or  exploding  any  gun,  pistol  or  firearm  of 
any  kind,  or  by  any  other  unlawful  recreation  or  pastime,  and  any  per- 
son violating  the  provisions  of  this  section  shall,  for  every  such  offense, 
upon  conviction  before  any  justice  of  the  peace  for  the  county,  forfeit 
the  gun,  pistol  or  other  firearm  used  in  such  violation,  and  be  fined  not 
less  than  five  dollars  nor  more  than  thirty  dollars,  one-half  such  fine 
to  go  to  the  person  causing  the  prosecution  to  be  instituted,  the  other 
half  to  the  school  fund  of  the  county,  and  upon  failure  or  refusal  to 
pay  such  fine,  and  the  costs  of  prosecution,  shall  be  committed  to  the 
jail  of  said  county,  and  confined  therein  until  said  fine  and  costs  are 
paid,  not  exceeding  in  any  case  a  period  of  twenty  days;  provided,  that 
any  perso»  so  convicted  shall  have  the  right  of  appeal  to  the  Circuit 
Court  of  said  county,  as  in  other  cases,  wherein  said  justices  of  the 
peace  have  final  jurisdiction." 

As  early  as  1834  a  case  came  before  the  Court  of  Appeals  in 
which  the  Divine  warrant  for  Sabbath  laws  was  clearly  main- 
tained. This  was  the  case  of  Kiigour  v.  Mil£s  and  Goldsmitk, 
relating-  to  the  non-fulfillment  of  a  contract  because  the  dav  s^ 


46  MARYLAyD. 

for  its  fulfillment  was  the  Sabbath.  The  defendants  in  their  plea 
used  the  term  "Sabbath  day."  Counsel  for  the  appellant  took 
the  ground  that  "the  averment  that  the  day  was  the  Sabbath," 
does  not  necessarily  mean  that  it  was  Sunday.  The  Court  gave 
the  following  opinion : 

"The  efforts  of  the  Counsel  to  escape  from  these  obvious  diflficul- 
ties,  by  taking  a  distinction  between  the  'Sabbath'  (as  the  day  is  de- 
scribed in  the  plea),  and  the  'Lord's  day,'  as  mentioned  in  the  act  of 
Assembly,  or  Sunday,  cannot  avail.  The  Sabbath  is  emphatically  the 
day  of  rest,  and  the  day  of  rest  is  the  'Lord's  day,'  or  Christian  Sunday. 
Ours  is  a  Christian  community,  and  a  day  set  apart  as  the  day  of  rest, 
is  the  day  consecrated  by  the  resurrection  of  our  Saviour."-  (G.  and  J. 
6,  268). 

The  constitutionality  of  this  law  was  put  to  the  test  in  1894 
in  the  case  of  Judefind  v.  State.  This  case  came  before  the 
Circuit  Court  for  Kent  County,  and  was  carried  to  the  Court  of 
Appeals.  The  argument  against  the  constitutionality  of  the  law 
was  that  it  is  in  violation  of  the  first  paragraph  of  the  fourteenth 
amendment  of  the  Constitution  of  the  United  States  and  of  article 
thirty-six  of  the  Bill  of  Rights  of  the  Constitution  of  Maryland. 
The  clause  in  the  Constitution  of  the  United  States  referred  to 
declares  that  "No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  State  deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  law." 
The  clause  in  the  Bill  of  Rights  in  the  Constitution  of  ^Maryland 
appealed  to  declares  it  to  be  the  duty  of  every  man  to  worship 
God  in  such  manner  as  he  thinks  most  acceptable  to  Him,  that 
all  persons  are  equally  entitled  to  protection  in  their  religious 
liberty,  that  "no  person  ought,  by  any  law,  to  be  molested  in  his 
person  or  estate  on  account  of  his  religious  persuasion,  profession 
or  practice,  unless,  under  the  color  of  religion,  he  shall  disturb 
the  good  order,  peace  or  safety  of  the  State,  or  shall  infringe  the 
laws  of  morality,  or  injure  others  in  their  natural,  civil  or 
religious  rights." 

Judge  Boyd  i-n  delivering  the  opinion  of  the  court  said : 
"We  have  not  the  slightest  hesitation  in  announcing  that  the 
law  complained  of  is  not  in  conflct  with  the  constitution  of  the  United 

States  or  of  Maryland There  have  been  numerous  decisions  in 

this  country  as  well  as  elsewhere,  sustaining  such  laws,  and  we  have  no 
desire  to  be  the  exception  to  the  general  rule. 


MARYLAND.     '  47 

"Nature,  experience,  and  observation  suggest  the  propriety  and  ne- 
cessity of  one  day  of  rest,  and  the  day  generally  adopted  is  Sunday. 

"There  are  and  always  will  be,  honest  differences  of  opinion  as  to 
how  Sunday  should  be  spent,  but  the  advantages  of  having  a  weekly 
day  of  rest,  'from  a  mere  physical  and  political  standpoint,'  are  too  ap- 
parent to  permit  us  to  doubt  the  propriety  of  having  reasonable  laws 
to  regulate  work  on  that  day.  Article  thirty-six  of  our  Declaration  of 
Rights  guarantees  religious  liberty;  but  the  members  of  the  dis- 
tinguished body  that  adopted  that  Constitution  never  supposed  they 
were  giving  a  death  blow  to  Sunday  laws  by  inserting  that  Article. 
Those  laws  do  not  prohibit  or  interfere  with  the  worship  of  God  on 
any  day  other  than  Sunday,  nor  do  they  compel  any  one  to  worship  on 

Sunday If  the  Christian  religion  is,  incidentally  or  otherwise, 

benefited  or  fostered  by  having  this  day  of  rest,  as  it  undoubtedly  is, 
there  is  all  the  more  reason  for  the  enforcement  of  laws  that  help  to 
preserve  it.  Whilst  the  courts  have  generally  sustained  Sunday  laws  as 
'civil  regulations,'  their  decisions  will  have  no  less  weight  if  they  are 
shown  to  be  in  accordance  with  divine  law  as  well  as  humsfn."  (78 
Md.  510,  1894). 

In  Philadelphia,  Wilmington  &  Baltimore  Railroad  Company  v. 
Lehman  and  Brother,  cattle  belonging  to  the  plaintiffs  were  received 
from  the  B.  &  0.  Railroad  Company  by  the  P.  W.  &  B.  Railroad  Com- 
pany to  be  transported  over  its  road.  An  action  was  brought  by  the 
plaintiffs  against  the  P.  W.  &  B.  Railroad  Company  upon  the  common 
liability  of  the  latter  as  a  common  carrier,  to  recover  damages  result- 
ing from  an  alleged  delay  in  the  transportation  of  the  cattle.  The  cattle 
were  received  for  shipment  on  Sabbath  afternoon  and  detained  till 
Monday  morning. 

The  Court  held  that  the  carrying  of  the  cattle  on  the  Lord's  day 
was  a  work  of  necessity  and  that  the  road  was  liable  for  damages.  The 
Court  said: 

"Most,  if  not  all,  of  the  States  of  the  Union  have  what  are  famil- 
iarly known  as  Sunday  laws,  and  while  they  may  differ  in  their  phrase- 
ology and  the  penalties  imposed,  they  are  substantially  the  same  in 
their  general  scope  and  provision; — all  looking  to  keep  the  day  sacred, 

and  as  one  of  rest  from  secular  employments In  this  Court  we 

have  had  no  case  analogous  to  the  present;  but,  looking  to  what  has 
been  decided  elsewhere,  we  have  no  doubt  in  concluding  that  our  Sun- 
day law,  as  found  in  the  Code,  Art.  30,  Sec.  178,  has  no  application  to 
this  case  whatever."     (56  Md.  209,  1881). 

Inquests  by  coroner's  juries,  and  commitments  by  coroner's  mag- 
istrates of  accused  persons  to  jail,  are  not  violations  of  the  law.  (74 
Md.  153,  1891). 

JMaryland  has  had  its  share  of  cases  in  which  violaters  of 
the  l-aw  have  attempted  to  escape  obHgations  or  punishment  be- 
cause contracts  made  on  the  Sabbath  are  void.     The  case  of 


48  MICHIGAN. 

Haack  v.  Knights  of  Liberty  Social  and  Liberty  Club,  is  in 
-point.  Haack  was  treasurer  of  the  Club,  and  had  money  in  his 
hands  obtained  from  the  sale  of  liquor  on  the  Sabbath,  the  club 
existing  partly  for  the  sale  of  liquor  and  cigars,  and  furnishing 
entertainment  on  the  Sabbath.  Mr.  Haack  refused  to  deliver  the 
money  to  the  Clufo  on  the  ground  that  these  sales  and  entertain- 
ments were  illegal.     The  Court  said : 

"We  do  not  think  the  defendant  should  be  allowed  to  escape  lia- 
bility in  the  case,  upon  any  such  pretexts The  laws  which  the 

State  has  enacted  to  secure  the  due  and  orderly  observance  of  Sunday, 
must,  of  course,  be  enforced,  and  so  construed  as  to  give  them  full  ef- 
fect, but  not  at  the  expense  of  all  the  rules  of  common  honesty."  (76 
Md.  429,  1892). 

The  law  of  this  State  is  among  the  very  best.  It  is  clear 
and  specific  in  its  prohibitions,  and  is  forcefully  sustained  by  the 
Supreme  Court  as  resting  on  solid  constitutional  ground. 

MICHIGAN.    (1892). 

Chapter  54  of  the  Michigan  statutes  is  entitled  ''Observance 
of  the  First  Day  of  the  Week,  and  the  Prevention  and  Punish- 
ment of  Immorality."  The  following  sections  relate  to  the  Sab- 
bath : 

"1.  No  person  shall  keep  open  his  shop,  warehouse  or  workhouse, 
or  shall  do  any  manner  of  labor,  business  or  work,  or  be  present  at 
any  dancing,  or  at  any  public  diversion,  show,  or  entertainment,  or 
take  part  in  any  sport,  game  or  play  on  the  first  day  of  the  week.  The 
foregoing  provisions  shall  not  apply  to  works  of  necessity  and  charity, 
nor  to  the  making  of  mutual  promises  of  marriage,  nor  to  the  solemni- 
zation of  marriages.  And  every  person  so  offending  shall  be  punished 
by  fine  not  exceeding  ten  dollars  for  each  offense. 

"2.  No  tavern  keeper,  retailer  of  spirituous  liquors  or  other  person 
keeping  a  house  of  public  entertainment,  shall  entertain  any  persons, 
not  being  travelers,,  strangers,  or  lodgers  in  his  house,  on  the  said  first 
day  of  the  week,  or  shall  suffer  any  such  person  on  said  day  to  abide 
or  remain  in  his  house,  or  in  the  buildings,  yards,  or  orchards  or  fields 
appertaining  to  the  same,  drinking,  or  spending  their  time  idly,  or  at 
■play,  or  doing  secular  business. 

"3.  Any  person  offending  against  any  of  the  provisions  of  the  last 
preceding  section,  shall  be  punished  by  a  fine  not  exceeding  five  dollars 
for  each  person  so  entertained,  or  suffered  so  to  abide  or  remain;  and 
upon  any  conviction  after  the  first;  such  offender  shall  be  punished 
"by  a  fine  not  exceeding  ten  dollars;  and  if  convicted  three  times,  he 
: shall  be  afterwards  incapable  of  holding  a  license;  and  every  person  so 


MICHIGAN.  49 

abiding  or  drinking  shall  be  punished  by  a  fine  not  exceeding  five  dol- 
lars. 

"4.  No  person  shall  be  present  at  any  game,  sport,  play,  or  pub- 
lic diversion,  or  resort  to  any  public  assembly,  excepting  meetings  for 
religious  worship  or  moral  instruction,  or  concerts  of  sacred  music, 
upon  the  evening  of  the  said  first  day  of  the  vi^eek;  and  every  person 
so  offending  shall  be  punished  by  a  fine  not  exceeding  five  dollars  for 
each  offense. 

"5.  No  person  shall  serve  or  execute  any  civil  process  from  mid- 
night preceding,  to  midnight  following  the  said  first  day  of  the  week; 
but  such  service  shall  be  void,  and  the  person  serving  or  executing  pro- 
cess, shall  be  liable  in  damages  to  the  party  aggrieved,  in  like  manner 
as  if  he  had  not  had  any  such  process. 

"6.  If  any  person  shall,  on  the  said  first  day  of  the  week,  by  rude 
and  indecent  behaviour,  or  in  any  other  way,  intentionally  interrupt 
or  disturb  any  assembly  of  people  met  for  the  purpose  of  worshipping 
God,  he  shall  be  punished  by  a  fine  not  less  than  two,  nor  more  than 
fifty  dollars,  or  by  imprisonment  in  the  county  jail  not  exceeding  thirty 
days. 

"7.  No  person  who  conscientiously  believes  that  the  seventh  day 
of  the  week  ought  to  be  observed  as  the  Sabbath,  and  actually  refrains 
from  secular  business  and  labor  on  that  day,  shall  be  liable  to  the  pen- 
alties provided  in  this  chapter,  for  performing  secular  business  or  labor 
on  the  said  first  day  of  the  week,  provided  he  disturb  no  other  person." 

Section  8  states  that  the  first  day  of  the  week  includes  the  time 
from  midnight  to  midnight,  and  that  no  prosecution  can  be  begun  af- 
ter the  expiration  of  three  months  from  the  time  when  the  offense*  was 
committed.     (Vol.  I,  pp.  543-545). 

In  1893  the  following  act  was  passed:  "1.  The  people  of  the  State 
of  Michigan  enact:  That  it  shall  be  unlawful  for  any  preson  or  per- 
sons to  carry  on  or  engage  in  the  act  or  calling  of  hair  cutting,  shaving, 
hair  dressing  and  shampooing,  or  in  any  work  pertaining  to  the  trade 
or  business  of  a  barber,  on  the  first  day  of  the  week  commonly  called 
Sunday  except  such  person  or  persons  shall  be  employed  to  exercise 
such  art  or  calling  in  relation  to  a  deceased  person  on  that  day. 

"2.  That  it  shall  be  unlawful  for  any  such  person  or  persons  to 
keep  open  their  shops  or  places  of  business  aforesaid,  on  said  first  day 
of  the  week  commonly  called  Sunday,  for  any  of  the  purposes  men- 
tioned in  section  one  of  this  act:  Provided,  however,  that  nothing  in 
this  act  shall  apply  to  persons  who  conscientiously  believe  the  seventh 
day  of  the  week  should  be  observed  as  the  Sabbath  and  who  actually 
refrain  from  secular  business  on  that  day." 

The  fine  for  violating  this  act  is  not  less  than  ten  nor  more  than 
twenty  dollars,  or  imprisonment  not  more  than  thirty  days,  or  both. 

The  constitutionality  of  this  law  was  tested  before  the 
-Supreme  Court  in  1893,  in  the  case  of  People  v.  Bellet,  Bellet 


50  MICHIGAN. 

being  on  trial  for  violating  the  act  relating  to  barbers.     The 

Court  said : 

"The  better  reason  for  maintaining  the  police  power  to  prohibit 
citizens  from  engaging  in  secular  pursuits  on  Sunday  is  the  necessity 
of  such  regulations  as  a  sanitary  measure.  As  to  those  employments 
which  are  noiseless,  and  harmless  in  themselves,  and  conducted  in  a 
manner  not  calculated  to  offend  those  who,  from  religious,  scruples,  ob- 
serve Sunday  as  the  Lord's  day,  this  necessity  appears  to  be  the  only 
valid  source  of  legislative  power;  and  this  is  based  upon  the  fact  that 
experience  has  demonstrated  that  one  day's  rest  is  requisite  for  the 
health  of  most  individuals,  and  not  all  individuals,  possess  the  power 
to  observe  a  day  of  their  own  volition."     (99  Mich.  151). 

In  the  case  of  Scougale  v.  Sweet,  the  Supreme  Court,  in  declaring^ 
games  of  base  ball  to  be  prohibited,  said:  "The  right  of  the  State  to 
enact  laws  for  the  observance  of  the  Sabbath  is  beyond  the  domain 
of  discussion.  Nearly  every  law  that  has  been  passed  upon  the  subject 
has  been  contested  in  the  courts.     Upon  no  subject  is  there  a  greater 

unanimity  in  judicial  opinions Whether  they  are  enacted  because 

of  the  necessity  of  a  day  of  rest,  or  out  of  regard  to  the  religious  prac- 
tices and  beliefs  of  the  people,  or  from  both  considerations,  we  need 
not  consider It  is  the  duty  of  the  sheriff  and  police  officers  gen- 
erally to  enforce  those  laws  which  the  people  have  enacted  for  the  pro- 
tection of  their  lives,  persons,  property,  health  and  morals,  including 
the  laws  for  the  observance  of  the  Sabbath."     (124  Mich.  311,  1900). 

As  to  the  interpretation  of  the  law  it  was  formerly  held  that  all 
business,  transactions  on  Sabbath  were  void  and  could  not  be  enforced. 
Two  men  traded  horses  on  the  Sabbath,  and  on  the  same  day  one  of 
them  gave  the  other  a  note  for  the  amount  of  the  difference  in  their 
value.  The  one  who  gave  the  note  refused  to  pay,  basing  his  refusal 
on  the  fact  that  the  transaction  was  illegal.  He  was  sustained  by  the 
Supreme  Court,  since  "No  case  could  be  more  clearly  a  matter  of  busi- 
ness within  the  statute;  and  no  business  transaction  on  that  day  more 
evidently  demoralizing  in  its  tendency  and  example."     (2  Douglas  76). 

In  1864  in  the  case  of  Tucker  v.  Mowry  a  different  construction 
was  placed  upon  the  law.  In  this  case  Mowry  had  sold  a  horse  to  Tuck- 
er on  the  Sabbath.  The  question  which  arose  was,  since  the  contract 
was  void,  could  Mowry  by  tendering  the  consideration  received  recover 
the  horse?  The  Court  held  that  he  could.  The  following  sentences 
show  the  line  of  reasoning:  "We  think  it  much  more  in  accord  with 
sound  public  policy  to  treat  the  contract  as,  utterly  void,  and  to  allow 
the  plaintiff,  by  tendering  back  what  he  has  received  (or  doing  what  is 
in  his  power  to  place  the  vendee  in  statu  quo),  to  recover  back  his 
property,  than  to  refuse  him  a  remedy,  and  thereby  to  affirm  tne  con- 
tract as  valid.  To  refuse  all  remedy  in  such  cases  would  be  to  open  a 
wide  door  to  fraud.    It  would  operate,  not  only  as  a  trap  to  the  ignorant 

and  unwary,  but  as  a  direct  encouragement  to     swindling We 

cannot  fail  to  see  that  if  all  remedy  were    refused  in    such    cases,    a 


MICHIGAN.  51 

shrewd  and  dishonest  man,  knowing  his  victim  could  obtain  no  legal 
redress,  might,  by  fraudulent  representations,  or  by  tempting  offers 
which  he  could  well  afford  to  make,  obtain  money  or  property  to  any 
extent  without  consideration  or  liability  to  pay. 

"One  object  of  the  statute  was  to  prevent  the  making  of  contracts 
on  Sunday;  but  to  refuse  to  sustain  an  action  to  recover  back  property 
sold  on  Sunday,  would  be  offering  a  premium  to  the  dishonest  lo  make 
their  contracts  on  that  day."     (12  Mich.  378). 

In  the  case  of  Allen  v.  Duffie,  Judge  Cooley  wrote  an  opin- 
ion in  which  all  the  other  Justices  concurred,  with  reference  to 
the  legality  of  subscriptions  made  on  the  Sabbath  to  pay  off  a 
church  debt.  After  declaring  that  such  acts  are  not  works  of 
necessity,  he  took  up  the  question,  are  they  works  of  charity? 
On  this  question  he  said : 

"Charity  is  active  goodness.  It  is  doing  good  to  our  fellow  men.  .  , 
It  was  never  doubted  so  far  as  we  know,  that  all  the  necessary  or  usual 
work  connected  with  religious  worship  was  work  of  charity.  If  it 
were  not  so,  the  minister  who  preaches,  the  organist  and  precentor,, 
who  furnishes  the  music,  and  the  sexton,  who  cares  for  the  building  on. 
Sunday,  would  be  violating  the  law  every  day  they  performed  service 
for  their  religious  society,  and  not  only  would  be  precluded  from  re- 
covering compensation,  but  might  be  punished  for  services  which  are 
proper  in  themselves,  and  for  which  the  day  is  specially  set  apart.  But 
their  work  is  not  illegal,  because  it  is  in  a  true  sense,  and  indeed  in  the 
very  highest  sense,   charitable.     Religious  societies  are  formed  to   do 

good  to  mankind The  support  of  religious  societies  being  in 

itself  a  charity,  the  general  custom  of  such  societies  as  to  the  methods 
by  which  the  means  of  support  may  be  collected  may  throw  much  light 
on  the  question,  'What  is  admissible?'  The  general  sense  of  a  Chris- 
tian people  has  demanded  and  secured  the  law,  and  their  method  of 
observing  the  day  must  be  some  evidence  of  the  sense  in  which  the 
law  is  enacted.  Now  it  is  a  matter  of  common  observation  that  relig- 
ious societies  solicit  moneys  for  their  needs  and  take  subscriptions  at 
their  regular  meetings  on  the  first  day  of  the  week.  .  .  .  Nobody  has 
ever  asserted,  so  far  as  we  are  aware,  that  the  taking  up  of  these  Sab- 
bath offerings  was  illegal  and  punishable  under  the  statute."  If  a  sub- 
scription  to  a  church  debt  is  illegal  the  judge  declared,  "the  clergyman 
might  be  fined  for  appealing  to  his  parishioners  to  be  moce  liberal  in. 
their  donations."     (43  Mich.  1,  1S90). 

In  the  case  of  The  Turnverein  Society  v.  Carter,  it  was- 
held  that  "A  resolution  adopted  on  Sunday  by  a  society  not  a 
religious  or  charitable  association  authorizing  the  mortgaging- 
of  the  society's  real  estate,  is  void,  and  it  is  a  question  of  law  for 
the  Court  whether  the  character  of  the  society  brings  it  within 
the  exception  to  the  statute  upon  the  subject."    (71  Mich.  608.) 


52  MISSOURI 

The  following-  deliverances  show  the  policy  of  this  State  as 
to  contracts  made  on  the  Lord's  day : 

"It  is  settled  law  in  Michigan  that  a  Sunday  contract  is  a  pro- 
hibited transaction,  the  illegality  of  which  forbids  it  being  made  a  sale 
by  a  mere  delivery  later." 

A  note  drawn  on  the  Lord's  day  is  void.     (96  Mich.  243.) 

A  bond  signed  on  the  Sabbath,  but  dated  and  made  to  take  effect 
on  a  week  day  will  protect  an  obligee  who  did  not  know  that  it  was 
signed  on  the  Sabbath.     (Hall  v.  Parker,  37  Mich.  590,  1877.) 

With  the  exception  of  the  liberty  allowed  to  Saturday  keep- 
ers both  to  labor  and  transact  business  on  the  Sabbath,  this  law 
is  of  superior  excellence.  The  opinions  of  the  courts  are  of  a 
high  order. 

MISSOURI.     (1S99). 

The  Sabbath  law  of  Missouri  is  found  in  Chapter  15,  article 
VIII.  and  is  entitled  "Offences  against  Public  Morals  and 
.Decency."     The  following  sections  relate  to  the  Sabbath: 

"2240.  Sabbath  breaking.  Every  person  who  shall  either 
labor  himself,  or  compel  or  permit  his  apprentice  or  servant, 
or  any  other  person  under  his  charge  or  control,  to 
labor  or  perform  any  work  other  than  the  household  of- 
fices of  daily  necessity,  or  other  works  of  necessity  or  charity,  or  who 
shall  be  guilty  of  hunting  game  or  shooting  on  the  first  day  of  the  week, 
commonly  called  Sunday,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  fined  not  exceeding  fifty  dollars. 

"2241.  The  last  section  shall  not  extend  to  any  person  who  is  a 
member  of  a  religious,  society  by  whom  any  other  than  the  first  day 
•of  the  week  is  observed  as  a  Sabbath,  so  as  he  observes  such  Sabbath, 
nor  to  prohibit  any  ferryman  from  crossing  passengers  on  any  day  of 
the  week;  nor  shall  said  last  section  be  extended  or  construed  to  be  an 
excuse  or  defense  in  any  suit  for  the  recovery  of  damages  or  penalties 
from  any  person,  company  or  corporation  voluntarily  contracting  or 
engaging  in  business  on  Sunday. 

"2242.  Horse  racing,  etc.,  on  Sunday. — Every  person  who  shall  be 
convicted  of  horse  racing,  cock  fighting,  or  playing  at  cards  or  games  of 
any  kind,  on  the  first  day  of  the  week,  commonly  called  Sunday,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty  dol- 
lars. 

"2243.  Selling  goods  on  Sunday. — Every  person  who  shall  expose 
to  sale  any  goods,  wares  or  merchandise,  or  shall  keep  open  any  ale  or 
porter  house,  grocery  or  tippling  shop,  or  shall  sell  or  retail  any  fer- 


jiissounr.  53 

mented  or  distilled  liquor  on  the  first  day  of  the  v/eek,  commonly  called 
Sunday,  shall,  on  conviction,  be  adjudged  guilty  of  a  misdemeanor  and 
fined  not  exceeding  fifty  dollars. 

"Sec.  2244.  The  last  section  shall  not  be  construed  to  prevent  the 
sale  of  any  drugs  or  medicines,  provisions  or  other  articles  of  immedi- 
ate necessity. 

"2245.  Barbering  on  Sunday. — That  it  shall  be  a  misdemeanor  for 
any  person  to  carry  on  the  business  of  barbering  on  Sunday.     (1895). 

"2246.  That  any  one  found  guilty  of  violating  section  2245  of 
this  article  shall  be  fined  not  less  than  twenty-five  dollars  nor  more 
than  fifty  dollars,  or  imprisoned  in  the  county  jail  not  less  than  fif- 
teen no  more  than  thirty  days,  or  both,  in  the  discretion  of  the  court. 
(Vol.  1.  pp.  523,  624). 

The  following  miscellaneous  sections  treat  of  various  aspects 
of  the  question : 

"370.  .  .  .Where  the  affidavit  for  an  attachment  states  that  the 
plaintiff  will  lose  his  claim  unless  the  writ  of  attachment  issues  and  be 
served  on  Sunday  or  on  any  legal  holiday,  the  writ  may  be  issued  and 
servel  on  that  day." 

Chapter  14  contains  the  following  with  reference  to  courts: 

"1615.  No  Court  to  sit  on  Sunday. — No  court  shall  be  open  or 
transact  business  on  Sunday,  unless  it  be  for  the  purpose  of  receiving 
a  verdict  or  discharging  a  jury;  and  every  adjournment  of  the  court 
on  Saturday  shall  always  be  to  some  other  day  than  Sunday,  except 
such  adjournment  as  may  be  made  after  a  cause  has  been  committed 
to  a  jury;  but  this  section  shall  not  prevent  the  exercise  of  the  juris- 
diction of  any  magistrate,  when  it  shall  be  necessary  in  criminal  cases, 
to  preserve  the  peace  or  arrest  the  offender,  nor  shall  it  prevent  the 
issuing  and  service  of  any  attachment  in  a  case  where  a  debtor  is  about 
fraudulently  to   secrete  or  remove  his  effects." 

Chapter  22  has  the  following  on  dram-shops: 

"3011.  Any  person  having  a  license  as  a  dram-shop-keeper,  who 
shall  keep  open  such  dram-shops,  or  shall  sell,  give  away  or  otherwise 
dispose  of,  or  suffer  the  same  to  be  done  upon  or  about  his  premises, 
any  intoxicating  liquors,  in  any  quantity,  on  the  first  day  of  the  week, 
commonly  called  Sunday,  or  upon  the  day  of  any  general  election  in 
this  State,  shall,  upon  conviction  thereof,  be  punished  by  a  fine  not  less 
than  fifty  nor  more  than  two  hundred  dollars,  shall  forfeit  such  license, 
and  shall  not  again  be  allowed  to  obtain  a  license  to  keep  a  dramshop 
for  the  term  of  two  years  next  thereafter." 

In  chapter  65  serving  writs,  etc.,  is  treated  of: 

"4683.     No  person  on  Sunday shall  serve  or  execute  any  writ, 

process,  warrant,  order  or  judgment,  except  in  criminal  cases,  or  for  a 
breach  of  the  peace,  or  when  the  defendant  is  about  leaving  the  county, 
or  in  any  case  of  attachment  when  the  debtor  is  about  fraudulently  to 
secrete  or  remove  his  effects  or  in  any  injunction  case." 


54  MISSOURI. 

The  constitutionality  of  the  Missouri  Sabbath  law  was  de- 
cided by  the  Supreme  Court  in  1854,  in  the  case  of  the  State  v. 
Ambs.  Judge  Scott  delivered  the  opinion  of  the  court.  The 
following  extracts  are  of  weighty  importance : 

"Peter  Ambs  was  indicted  for  keeping  open  an  ale  house  on  Sun- 
day, and  for  selling  intoxicating  liquors  on  the  same  day The 

main  question  argued  in  the  briefs  of  the  counsel  in  this  case  was,  the 
constitutionality  of  the  law  exacting  the  observance  of  Sunday,  as  a 
day  of  rest.  It  was  maintained  for  the  appellant,  that  the  laws  enjoin- 
ing an  abstinence  from  labor  on  Sunday,  under  a  penalty,  and  prohibit- 
ing the  opening  of  ale  and  beer  houses,  and  selling  intoxicating  liquors 
on  that  day,  were  dictated  by  religious  motives,  and  consequently 
could  not  be  sustained,  being  inconsistent  with  the  State  constitution, 
which  ordains  that  all  men  have  a  natural  and  indefeasible  right  to 
worship  Almighty  God  according  to  the  dictates  of  their  own  con- 
sciences;  that  no  human  authority  can  control  or  interfere  with 

the  rights  of  conscience;  that  no  person  can  ever  be  hurt,  molested  or 
restrained  in  his  religious  professions  or  sentiments,  if  he  do  not  dis- 
turb others,  in  their  religious  worship;  that  no  preference  can  ever  be 
given  by  law  to  any  sect  or  mode  of  worship. 

"Those  who  question  the  constitutionality  of  our  Sunday  laws, 
seem  to  imagine  that  the  constitution  is  to  be  regarded  as  an  instru- 
ment framed  for  a  State  composed  of  strangers  collected  from  all  quar- 
ters of  the  globe,  each  with  a  religion  of  his,  own.  bound  by  no  prev- 
ious social  ties,  nor  sympathizing  in  any  common  reminiscences  of  the 
past;  that  unlike  ordinary  laws,,  it  is  not  to  be  construed  in  reference 
to  the  state  and  condition  of  those  for  whom  it  was  intended,  btit  that 
the  words  in  which  it  is  comprehended  are  alone  to  be  regarded,  with- 
out respect  to  the  history  of  the  people  for  whom  it  v/as  made. 

"It  is  apprehended,  that  such  is  not  the  mode  by  which  our  organic 
law  is  to  be  interpreted.  We  must  regard  the  people  for  whom  it  was 
ordained.  It  appears  to  have  been  made  by  Christian  men.  The  con- 
stitution, on  its  face,  shows  that  the  Christian  religion  was  the  re- 
ligion of  its  framers.  .  .  .  Long  before  the  convention  which  framed 
our  constitution  was  assembled,  experience  had  shown  that  the  mild 
■voice  of  Christianity  was  unable  to  secure  the  due  observance  of  Sun- 
day as  a  day  of  rest.  The  arm  of  the  civil  power  had  interposed.  The 
convention  sat  under  a  law  exacting  a  cessation  from  labor  on  Sunday. 
The  journal  of  the  convention  will  show  that  this  law  was  obeyed  by 
its  members  as  such,  by  adjournments  from  Saturday  until  Monday. 
....  The  framers  of  the  constitution  then  recognized  Sunday  as  a 
day  to  be  observed,  acting  themselves  under  a  law  which  exacted  a 
compulsive  observance  of  it.  If  a  compulsive  observance  of  the  Lord's 
day,  as  a  day  of  rest,  had  been  deemed  inconsistent  with  the  principles 
contained  in  the  constitution,  can  any  thing  be  clearer  than,  as,  the 
matter  was  so  plainly  and  palpably  before  the  convention,  a  specific 


3nSS0URI.  55 

condemnation  of  the  Sunday  law  would  have  been  engrafted  upon  it? 
So  far  from  it,  Sunday  was  recognized  as  a  day  of  rest,  when,  at  the 
same  time,  a  cessation  from  labor  on  that  day  was  coerced  by  a  pen- 
alty. They,  then,  who  engrafted  on  our  constitution  the  principles  of 
religious  freedom  therein  contained,  did  not  regard  the  compulsory  ob- 
servance of  Sunday  as  a  day  of  rest,  a  violation  of  those  principles. 
They  deemed  a  statute  compelling  the  observance  of  Sunday  necessary 
to  secure  a  full  enjoyment  of  the  rights  of  conscience.  How  could  those 
who  conscientiously  believed  that  Sunday  is  hallowed  time,  to  be  de- 
voted to  the  worship  of  God,  enjoy  themselves  in  its  observance  amidst 
all  the  turmoil  and  bustle  of  worldly  pursuits,  amidst  scenes  by  which 
the  day  was  desecrated,  which  they  conscientiously  believed  to  be  holy? 
The  Sunday  law  was  not  intended  to  compel  people  to  go  to  church,  or 
to  perform  any  religious  act,  as  an  expression  of  preference  for  any 
particular  creed  or  sect,  but  was  designed  to  coerce  a  cessation  from  la- 
bor, that  those  who  conscientiously  believed  that  the  day  was  set  apart 
for  the  worship  of  God,  might  not  be  disturbed  in  the  performance  of 
their  religious  duties.  Every  man  is  free  to  use  the  day  for  the  pur- 
pose for  which  it  is  set  apart  or  not,  as  he  pleases.  If  he  sees  proper 
to  devote  it  to  religious  purposes,  the  law  protects  him  from  the  dis- 
turbance of  others;  if  he  will  not  employ  himself  in  raligious  duties, 
he  is  restrained  from  interrupting  those  who  do.  Thus  the  law,  so  far 
from  affecting  religious  freedom,  is  a  means  by  which  the  rights  of  con- 
science are  enjoyed."  "Bearing  in  mind  that  our  constitution  was 
framed  for  a  people  whose  religion  was  Christianity,  who  had  long 
lived  under,  and  experienced  the  necessity  of  laws  to  secure  the  observ- 
ance of  Sunday  as  a  day  of  rest,  how  remarkable  would  it  have  been 
fhat  they  should  have  agreed  to  make  common,  by  their  fundamental 
law,  a  day  consecrated  from  the  very  birth  of  their  religion,  and  hal- 
lowed by  associations  dear  to  every  Christian How  can  we  recon- 
cile the  idea  to  our  understanding,  that  a  people  professing  Christian- 
ity would  make  a  fundamental  law  by  which  they  would  convert  Sun- 
day into  a  worldly  day? How  startling  would  the  announcement 

be  to  the  people  of  Missouri  that,  by  their  organic  law,  they  had  abol- 
ished Sunday  as  a  day  of  rest,  and  had  put  it  out  of  the  power  of  their 
legislators  ever  to  restore  it  as  such!"     (20  Mo.  214). 

In  the  case  of  the  State  v.  Granneman,  section  2245,  was  declared 
unconstitutional  because  it  is  special  law.  The  Court  said:  "Barber- 
ing  is  labor,  and  the  object  of  the  act  is  to  enforce  an 
observance  of  the  Sabbath,  and  to  prohibit  that  kind  of  labor  on  that 
-day.  The  policy  of  our  laws  is  to  compel  the  observance  of  Sunday 
as  a  day  of  rest,  and  if  this  may  be  done  by  a  general  law,  applicable 
alike  to  all  classes  and  kinds  of  labor,  then  the  act  falls  within  the  in- 
hibition of  the  paragraph  of  the  constitution  quoted,  which  prohibits 
the  legislature  from  passing  any  local  or  special  law,  where  a  general 
lav,^  can  be  made  applicable.  That  a  general  law  prohibiting  all  kinds 
<of  labor  on  Sunday,  may  not  only  be  passed,  but  that  we  have  such  a 


56  MISSOURI. 

law  now  upon  our  statute  book,  is  indisputable."  I.  R.  S.  1889,  Sec.  3852. 
(132  Mo.  326.  1895). 

Judge  Ellison,  of  the  Missouri  Court  of  Appeals,  made  a  contribu- 
tion of  considerable  value  to  the  argument  for  the  constitutionality  of 
Sabbath  laws  in  the  case  of  the  City  of  St.  Joseph  v.  Elliott.  He  said: 
"Whether  laws  enforcing  the  observance  of  Sunday  be  bottomed  alone 
on  matters  spiritual  and  religious  and  have  for  their  sole  object  the 
enforcement  of  religious  duty,  or  whether  such  laws  are  merely  the  ex- 
ercise of  the  State's  police  power  regulating  the  customs,  peace  or 
health  of  the  people,  can  make  no  practical  difference  to  this  defendant. 
These  laws,  under  constitutions  like  ours,  are  everywhere  upheld, 
though  the  reasons  upon  which  they  are  sustained  are  various.  So 
if  defendant  has  been  convicted  on  the  theory  that  the  law  made  him 
observe  the  Sabbath  either  from  a  religious  duty  to  God,  or  a  political 
duty  to  the  State,  or  a  social  duty  to  his  fellows,  or  all  of  these  com- 
bined, can  make  no  difference.  Each  of  the  foregoing  have  been  given 
as  reasons  back  of  the  law,  and  each  leading  to  the  one  result  of  up- 
holding the  law,  and  convicting  this  defendant. 

"It  is  not  our  province  to  decide  this  ordinance  to  be  constitutional 
for  one  or  other  of  these  reasons,  and  we  do  not  undertake  to  do  so. 
But  that  it  is  proper  to  hold  that  it  is  an  object  of  such  laws  to  prevent 
the  desecration  of  the  Sabbath,  there  can  be  no  doubt.  To  say  otherwise 
would  be  to  shut  one's  eyes  to  all  history  and  to  isolate  one's  self  from 
his,  daily  surroundings.  Because  no  one  can  be  compelled  to  do  any 
act  of  religious  service  on  Sunday,  it  by  no  means  follows  that  he  can- 
not be  prevented  from  desecrating  the  day.  For  I  apprehend  that  no 
man  will  be  found  with  sufficient  temerity  to  say  that  all  Sunday  laws 
in  this  country  have  not  as  a  part,  at  least,  of  their  object  the  protec- 
tion of  the  observance  of  religious  duties,  and  that  the  moving  cause  of 
their  enactment  was  not  in  obedience  to,  and  the  result  of,  religious 
sentiment  existing  in  the  State  where  enacted." 

"The  truth  is  that  some  courts  having  concluded  (perhaps  with- 
out sufficient  justification)  that  laws  enacted  for  the  observance  of 
Sunday  as  a  religious  duty  were  repugnant  to  constitutions  guarantee- 
ing religious  freedom,  and  yet  determined  to  uphold  them,  have  set 
about  to  find  other  reasons  than  those  based  on  Christianity.  These 
reasons  Ringgold,  in  his  work  on  the  law  of  Sunday  (p.  101),  declares 
to  be  'an  afterthought  of  the  courts,'  that  is  to  say,  that  it  is  an  attempt 
to  find  a  sanction  for  these  statutes  in  considerations  which  have  never 
been  the  moving  causes  of  their  enactment."     (47  A.  418,  1891). 

The  law  declares  that  no  court  shall  be  open  or  transact  any  busi- 
ness on  Sabbath  unless  it  be  for  the  purpose  of  receiving  a  verdict  and 
discharging  a  jury.  In  the  St.  Louis  Criminal  Court  a  man  by  the  name 
of  Green  was  tried  and  convicted  of  murder  in  the  first  degree.  The 
charge  to  the  jury  was  not  completed  till  ten  minutes  after  twelve  on 
Saturday  night.  The  court  then  took  a  recess  till  two  o'clock  when  the- 
verdict  was  received  and  the  jury  discharged.    Appeal  was  taken,  chief- 


MISSOURI.  57' 

ly  on  this  ground,  to  the  Supreme  Court.  This  Court  held  that  the 
charge  to  the  jury  should  have  ended  by  midnight,  and  since  it  did  not 
all  the  proceedings  after  that  hour  were  illegal  and  void,  and  the  cause 
was  remanded  for  a  new  trial.     (37  Mo.,  State  v.  Green,  4G6,  1866). 

Where  goods  are  selected  and  the  prices  settled  on  Sabbath,  but 
according  to  the  contract  are  not  to  be  delivered  till  Monday,  the  con- 
tract cannot  be  regarded  as  made  on  Sabbath.  (Rosenblatt  v.  Towns- 
ley,  73  Mo.  536,  1881). 

It  has  been  held  that  the  statute  prohibiting  "horseracing,  cock 
fighting,  or  playing  at  cards  or  games  of  any  kind,  on  the  first  day  of 
the  week,"  does  not  prohibit  "athletic  games  and  sports."  (The  St.  L. 
Agr'l  Ass'n  v.  Delana,  108  Mo.  217,  1891). 

The  statutes  of  Missouri  do  not  go  so  far  as  those  of  many  other 
States  in  prohibiting  the  transaction  of  all  worldly  business.  Promissory 
notes  and  deeds  drawn  on  the  first  day  of  the  week  are  valid.  (Roberts 
V.  Barnes,  127  Mo.  405,  1894,  Kauffman  v.  Hamm,  30  Mo.  387,  More  v. 
Clymer,  12  Mo.  App.  11). 

Playing  baseball  is  held  not  to  be  a  violation  of  the  statutes,  be- 
cause it  is  not  an  immoral  game,  and  the  games  forbidden  on  the  first 
day  of  the  week  are  only  such  as  are  in  their  nature  demoralizing. 
The  contrary  construction  of  the  statute  it  was,  said  would  be  "elastic 
enough  to  cover  every  game  that  ever  was  or  ever  will  be  invented,  no 
matter  whether  it  was  harmless,  promotive  of  physical  or  mental  de- 
velopment or  deleterious  to  both.  It  would  prevent  games  of  chess, 
backgammon,  jacks,  authors,  proverbs,  faro,  keno,  and  poker  alike,  and 
when  played  on  Sunday  any  one  would  have  been  as  illegal  as  any  oth- 
er. Such  a  construction  would  have  curtailed  many  of  the  pleasures  of 
our  people,  without  elevating  them  or  improving  their  moral  tone." 
(Ex.  parte  Joseph  Nect.  157  Mo.  527,  1900). 

According  to  the  law  of  this  State  a  motion  for  a  new  trial  must  be 
filed  v/ithin  four  days,  but  courts  must  take  notice  of  the  calendar,  and 
an  intervening  Sabbath  is  not  to  be  counted.  (The  State  v.  Gullette, 
121  Mo.  445,  1894). 

The  execution  of  a  deed  of  trust  on  the  Sabbath  is  not  for  that  rea- 
son void.     (Robert  v.  Barnes,  127  Mo.  405,  1894). 

The  law  of  Missouri  like  that  of  Kansas  is  interpreted  as  not 
prohibiting  on  the  Lord's  day  base  ball  and  other  athletic  sports. 
It  needs  amendment  so  as  to  make  it  clear  that  not  only  all  im- 
moral games  without  exception  are  prohibited,  but  that  all  public 
sports  are  also  put  under  the  ban.  The  first  opinion  quoted 
above  is  one  of  the  most  able  ever  delivered  on  this  question.  It 
makes  clear  the  fact  that  Christianity  is  part  of  the  common  law. 
Akich  is  added  to  the  argument  for  Sabbath  laws  by  this  and 
some  other  opinions  of  the  ^Missouri  Courts. 


58  NORTH  DAKOTA. 

NORTH  DAKOTA.     (1899). 

Chapter  4  of  the  Penal  Code  of  this  State  is  entitled  "Crimes 
against  Religion  and  Conscience."  The  sections  relating  to  "Sab- 
bath Breaking"  are  as  follows : 

"6837.  The  first  day  of  the  week  being  by  general  consent  set  apart 
for  rest  and  religious  uses,  the  law  prohibits  the  doing  on  that  day  of 
certain  acts  hereinafter  specified. 

"6838.     Any  violation  of  this  prohibition  is  Sabbath-breaking. 

"6839.  Under  the  term  "day"  as  employed  in  the  phrase  "first  day 
of  the  week,"  in  the  seven  sections  following,  is  iscluded  all  the  time 
from  midnight  to  midnight. 

"6840.  The  following  are  the  acts  forbidden  to  be  done  on  the  first 
day  of  the  week,  the  doing  of  any  of  which  is  Sabbath-breaking. 

"1.     Servile  labor. 

"2.     Public  sports. 

"3.     Trades,   manufactures   and   mechanical   employments. 

"4.     Public  trafiic. 

"5.     Serving  process. 

"6841.  All  manner  of  servile  labor  on  the  first  day  of  the  week  is 
prohibited,  excepting  works  of  necessity  and  charity. 

"6842.  It  is  a  sufficient  defense  in  proceedings  for  servile  labor  on 
the  first  day  of  the  week,  to  show  that  the  accused  uniformly  keeps 
another  day  of  the  week  as  holy  time,  and  does  not  labor  upon  that 
day,  and  that  the  labor  complained  of  was  done  in  such  manner  as 
not  to  interrupt  or  disturb  other  persons  in  observing  the  first  day  of 
the  week  as  holy  time. 

"6843.  All  shooting,  sporting,  horse-racing,  gaming  or  other  public 
•sports,  upon  the  first  day  of  the  week,  are  prohibited. 

"6844.  All  trades,  manufactures  and  mechanical  employments, 
upon  the  first  day  of  the  week,  are  prohibited. 

"6845.  All  manner  of  public  selling,  or  offering,  or  exposing  for 
sale  publicly,  of  any  commodities  upon  the  first  day  of  the  week  is 
prohibited,  except  that  meats,  milk  and  fish  may  be  sold  at  any  time 
before  nine  o'clock  in  the  morning,  and  except  that  food  may  be  sold 
to  be  eaten  upon  the  premises  where  sold,  and  drugs  and  medicines  and 
surgical  appliances  may  be  sold  at  any  time  of  the  day. 

"6846.  All  service  of  legal  process  of  any  description,  upon  the 
first  day  of  the  week,  is  prohibited,  except  in  cases  of  breach  of  the 
peace,  or  when  sued  out  for  the  apprehension  of  a  person  charged  with 
crime,  or  except  where  such  service  shall  be  specially  authorized  by 
law. 

"6847.  Every  person  guilty  of  Sabbath  breaking  is  punishable 
by  a  fine  of  not  less  than  one  dollar  nor  more  than  ten  dollars  at  the 
-discretion  of  the  court,  for  each  offense. 

"6848.     The  fines  prescribed  in  this  chapter  for  profane  swearing 


OHIO.  59 

and  for  Sabbath  breaking  may  be  collected  in  the  manner  prescribed 
by  law,  for  collection  of  debts;  but  no  property  shall  be  exempt  from 
execution  which  has.  been  taken  to  satisfy  any  such  fines  and  costs. 

"6849.  Every  innkeeper,  or  person  licensed  to  sell  liquors,  who 
sells  or  gives  away  any  strong  or  spirituous  liquors  or  wine,  upon  Sun- 
day, is  guilty  of  a  misdemeanor. 

"6850.  Every  master  or  other  person  engaged  in  navigating  a 
steamboat,  who  allows,  any  liquors  mentioned  in  the  last  section  to  be 
sold  on  his  boat  on  Sunday,  while  stopping  at  any  wharf,  landing,  city 
or  town  in  this  State,  is  guilty  of  a  misdemeanor." 

North  Dakota  being  onQ  of  the  newer  States  not  many  cases 
have  yet  reached  the  Supreme  Court.  While  North  and  South 
Dakota  formed  the  Territory  of  Dakota  a  case  with  reference  to 
what  is  lawful  for  juries  and  courts  was  rendered.  It  was  held 
that : 

"A  jury  that  has  retired  to  deliberate  upon  their  verdict,  may  re- 
quest and  receive  additional  instructions  on  the  Sabbath,  or  the  judge 
may  on  that  day  upon  his  own  motion  have  the  jury  brought  in  and 
re-instruct  them,  for  the  purpose  of  correcting  a  supposed  error  or 
mistake  in  his  former  charge."     (1  Dakota,  197,  1875). 

The  law  of  this  State,  like  some  others  in  this  class,  allows 
the  sale  of  certain  articles  of  food  on  the  Sabbath.  It  is  doubt- 
ful whether  the  latitude  allowed  is  necessary.  Aside  from  the 
features  here  noted  this  is  among;  the  best  of  otir  Sabbath  laws. 

OHIO.    (1903). 

Part  Four  of  the  Ohio  statutes  contains  the  Penal  Laws. 
Chapter  9  treats  of  "Ofifences  against  Chastity  and  Morals." 
The  sections  relating  to  the  Sabbath  are  the  following : 

"7032.  Whoever,  being  over  fourteen  years  of  age,  engages  in 
sporting,  rioting,  quarreling,  hunting,  fishing,  or  shooting,  on  Sunday, 
shall,  on  complaint  made  within  ten  days  thereafter,  be  fined  not  more 
than  twenty  dollars,  or  imprisoned  not  more  than  twenty  days,  or 
both. 

"7032a.  Whoever  on  the  first  day  of  the  week,  commonly  called 
Sunday,  participates  in  or  exhibits  to  the  public  with  or  without  eharge 
for  admittance,  in  any  building,  I'oom,  ground,  garden,  or  other  place  in 
this  State,  any  theatrical  or  dramatic  performance  of  any  kind  or  de- 
scription, or  any  equestrian  or  circus  performance  of  jugglers,  acrobats, 
rope  dancing,  sparring  exhibitions,  variety  shows,  negro  minstrelsy, 
living  statuary,  ballooning,  or  any  baseball  playing,  or  any  ten  pins, 
or  other  games  of  similar  kind  or  kinds,  or  participates  In  keeping  any 
low  or  disorderly  house  of  resort,  or  shall  sell,  dispose  of  or  give  away 
any  ale,  beer,  porter,  or  spirituous  liquors  in  any  building  appendant  or 


6o  OHIO. 

adjacent  thereto,  when  any  such  show,  performance,  or  exhibition  is- 
given,  or  houses  or  places  is  lvept,'he  or  she  shall,  on  complaint  made 
within  twenty  days  thereafter,  be  fined  in  any  sum  not  exceeding  one 
hundred  dollars,  or  be  confined  in  the  county  jail  not  exceeding  six 
months,  or  both,  at  the  discretion  of  the  court. 

"7033.  Whoever,  being  over  fourteen  years  of  age,  engages  in  com- 
mon labor  on  the  first  day  of  the  week,  commonly  called  Sunday;  and 
whoever,  being  over  fourteen  years  of  age,  shall  open  or  cause  to  be 
opened  any  building  or  place  for  the  transaction  of  business  on  the  first 
day  of  the  week,  commonly  called  Sunday,  or  who  shall  require  any 
person  in  his,  employ  or  under  his  control  to  engage  in  common  labor 
on  Sunday,  shall,  on  complaint  made  within  ten  days  thereafter,  and 
upon  conviction,  be  fined,  for  the  first  offense,  twenty-five  dollars,  and 
for  each  subsequent  offense  such  person  shall  be  fined  not  less  than 
fifty  dollars  nor  more  than  one  hundred  dollars,  and  imprisoned  not 
less  than  five  days  nor  more  than  thirty  days. 

"But  this  section  does  not  apply  to  or  embrace  works  of  necessity 
or  charity,  and  does  not  extend  to  persons  who  conscientiously  observe 
the  seventh  day  of  the  week  as  the  Sabbath,  and  who  do  in  fact  ab- 
stain, on  that  day,  from  the  doing  of  the  things  Herein  prohibited  on 
Sunday;  nor  shall  it  be  so  construed  as  to  prevent  families  emigrating, 
from  travelling,  or  watermen  from  landing  their  passengers,  or  keepers 
of  toll-bridges,  toll-gates  or  ferries  from  attending  the  same,  on  Sun- 
day. 

"7033-1.  Any  person  who  engages  in  the  business  of  barbering  on 
Sunday  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  conviction 
thereof  shall  be  fined  not  less  than  fifteen  dollars,  and  upon  a  subse- 
quent conviction  for  a  like  offense  shall  be  fined  not  less  than  twenty 
dollars,  and  not  more  than  thirty  dollars,  or  imprisoned  in  the  county 
jail  for  a  period  of  not  less  than  twenty  days  nor  more  than  thirty 
days,  or  be  both  fined  and  imprisoned  at  the  discretion  of  the  court." 
(Vol.  3,  pp..  3390,  3391). 

The  clause  in  sec.  7032  relating  to  the  opening  of  places  of 
business  was  added  only  a  few  years  ago,  but  the  courts  generally 
held  that  the  expression  "common  labor"  in  the  same  section 
included  buying,  selling  etc  : 

The  first  case  to  call  forth  a  Supreme  Court  opinion  on  the 
constitutionality  of  this  law  was  that  of  Bloom  v.  Richards. 
The  question  at  issue  was  the  validity  of  a  contract  made  on  the 
first  day  of  the  week.  In  two  older  cases  such  contracts  were 
declared  to  be  void.  (15  O.  R.  225,  1846;  18  O.  R.  489,  1849). 
In  this  case  they  were  pronounced  valid,  Judge  Thurman  de- 
livering the  opinion  of  the  court.  It  was  first  maintained  that 
neither  in  England  nor  America  are  such  contracts  void  at  com- 
mon law,  although  the  contrary  opinion  has  sometimes  been  held 


OHIO.  6r 

in  both  countries.  Mr.  Justice  Thurman  then  presents  an 
elaborate  argument  on  the  point  in  dispute  in  which  he  denies 
that  Christianity  is  part  of  the  common  law,  but  upholds  the 
constitutionality  of  the  law  as  a  police  regulation.  The  follow- 
ing sentences  are  interesting  though  we  may  not  wholly  agree 
with  some  of  the  positions  taken. 

"Were  such  a  contract  void  by  the  common  law  of  England,  it 
would  not  necessarily  follow  that  it  is  void  in  Ohio The  consti- 
tution of  Ohio  has  declared  that  all  men  have  a  natural  and  indefeas- 
ible right  to  worship  Almighty  God  according  to  the  dictates  of  con- 
science; that  no  human  authority  can,  in  any  case  whatever,  control 
or  interfere  with  the  rights  of  conscience;  that  no  man  shall  be  com- 
pelled to  attend,  erect  or  support  any  place  of  worship,  or  to  maintain 
any  ministry,  against  his  consent;  and  that  no  preference  shall  ever  be 
given,  by  lavs^,  to  any  religious  society  or  mode  of  worship,  and  no  re- 
ligious test  shall  be  required,  as  a  qualiflcafion  to  any  office  of  trust  or 
profit,  it  follows  that  neither  Christianity,  nor  any  other  system  of  re- 
ligion is  a  part  of  the  law  of  the  State We  have  no  union  of  Church 

and  State,  nor  has  our  government  ever  been  vested  with  authority  to 
enforce  any  religious  observance,  simply  because  it  is  religious.  Of 
course,  it  is  no  objection,  but,  on  the  contrary,  is  a  high  recommenda- 
tion, to  a  legislative  enactment,  based  upon  justice  or  public  policy, 
that  it  is  found  to  coincide  with  the  precepts  of  a  pure  religion;  but 
the  fact  is,  nevertheless  true,  that  the  power  to  make  the  law  rests  in 
the  legislative  control  over  things  temporal  and  not  over  things  spirit- 
ual. Thus  the  statute  upon  which  the  defendant  relies,  prohibiting 
common  labor  on  the  Sabbath,  could  not  stand  for  a  moment  as  a  law 
of  this  State,  if  its  sole  foundation  was  the  Christian  duty  Gl  keeping 
that  day  holy,  and  its  sole  motive  to  enforce  the  observance  of  that 
duty.  For  no  power  over  things  merely  spiritual,  has  ever  been  dele- 
gated to  the  government,  while  any  preference  of  one  religion  over  an- 
other, as  the  statute  would  give  upon  the  above  hypothesis,  is  directly 
prohibited  by  the  constitution.  Acts  evil  in  their  nature,  or  dangerous 
to  the  public  welfare,  may  be  forbidden  and  punished,  though  sanc- 
tioned by  one  religion  and  prohibited  by  another;  but  this  creates  no 
preference  whatever,  for  they  would  be  equally  forbidden  and  punished 
if  all  religions  permitted  them.  Thus,  no  plea  of  his  religion  could 
shield  a  murderer,  ravisher,  or  bigamist:  for  the  community  would  be 
at  the  mercy  of  superstition,  if  such  crimes  as  these  could  be  committed 
with  impunity,  because  sanctioned  by  some  religious  delusion. 

"We  are,  then,  to  regard  the  statute  under  consideration  as  a  mere 
municipal,  or  police  regulation,  whose  validity  is  neither  strengthened 
or  weakened  by  the  fact  that  the  day  of  rest  it  enjoins  is  the  Sabbath 
day.  _  Wisdom  requires  that  men  should  refrain  from  labor  at  least  one 
day  in  seven,  and  the  advantages  of  having  the  day  of  rest  fixed,  and 
so  fixed  as  to  happen  at  regularly  recurring  intervals,  are  too  obvious 


62  OHIO. 

to  be  overlooked.  It  was  within  the  constitutional  competency  of  the 
General  Assembly  to  require  this 'cessation  of  labor,  and  to  name  the 
day  of  rest.  It  did  so  by  the  act  referred  to,  and,  in  accordance  with 
the  feelings  of  a  majority  of  the  people,  the  Christian  Sabbath  was 
very  properly  selected.  But,  regarded  merely  as  an  exertion  of  legisla- 
tive authority,  the  act  would  have  had  neither  more  nor  less  validity 
had  any  other  day  been  adopted."  Judge  Thurman  says  that  it  may  be 
consistent,  in  a  country  where  Christianity  is  a  part  of  the  law,  and  in 
which  there  is  an  established  Church,  and  an  omnipotent  parliament, 
to  declare  that  "to  allow  men  to  make  bargains  on  the  Sabbath  is  to 
let  them  desecrate  that  holy  day,  and  it  should  not  be  granted  that  the 
legislature  would  suffer  that."  But  he  declares  "the  General  Assembly 
of  Ohio  is  not,  as  we  have  shown,  a  guardian  of  the  sanctity  of  any  day. 
If  it  may  protect  the  first  day  of  the  week  from  desecration,  because 
it  is  the  Christian  Sabbath,  it  may,  in  like  manner,  protect  the  sixth  be- 
cause it  is  the  holy  day  of  the  Mahommedan  and  the  seventh  because  it 
is  the  Sabbath  of  the  Jew  and  the  Seventh  Day  Baptist."  "It  would, 
in  the  opinion  of  most  Christians,  be  a  far  greater  desecration  of  Sun- 
day to  go  to  an  infidel  lecture  on  that  day,  than  to  buy  a  tract  of  land: 
and  yet  the  former  is  certainly  not  unlawful.  The  statute  leaves  a  man 
to  study  atheism  or  the  Bible  on  the  Lord's  day,  as  he  may  see  fit,  al- 
though in  the  judgment  of  most  men,  the  former  occupation  is  as  vici- 
ous as  the  latter  is  laudable.  There  are  various  religious  duties,  the 
performance  of  which  on  Sunday  is  considered  peculiarly  appropriate; 
various  occupations  or  amusements,  harmless  in  themselves,  but 
deemed  by  most  Christians  irreligious  if  indulged  in  on  the  Sabbath; 
yet  the  law  neither  enforces  the  one  nor  forbids  the  other.  In  a  word, 
we  repeat,  that  legally  considered,  Sunday  is  merely  a  day  of  rest.  To 
the  Christian  it  is  far  more.  With  him,  it  has  a  sanctity  not  derived 
from  human  laws,  but  stamped  upon  it  by  the  Almighty.  His  observ- 
ance of  it  is  not  the  mere  performance  of  a  civil  duty,  but  an  obedi- 
ence to  a  precept  of  the  Most  High.  In  this  faith  he  is  protected;  the 
faith  itself  is  regarded  with  respect;  but  the  law  does  not  enforce  it." 
(2  O.  S.  R.  387,  1853). 

In  1855  the  merits  of  the  Sabbath  law  of  Ohio  were  again 
put  to  the  test  before  the  Supreme  Court,  in  the  case  of  Thomas 
McGatrick  v.  Charles  Mason.  (4  O.  S.  566).  Mason  had  re- 
quested his  hired  man  McGatrick  to  assist  him  in  placing 
certain  railroad  cars  and  trucks, — which  he  had  sold  and  agreed 
to  ship  from  Cleveland  to  Toledo — on  a  vessel ;  to  do  which  it  was 
necessary  to  raise  them  from  the  dock  by  the  use  of  machinery 
and  manual  efifort.  McGatrick  consented.  The  work  was  to 
be  done  the  next  day  which  was  Sabbath,  Nov.  15,  as  the  vessel 
was  about  to  sail,  and  the  master  would  not  take  the  cars  etc., 
unless  shipped  on  that  day ;  and  "it  was  a  matter  of  great  neces- 


OHIO.  65 

sity  that  they  should  be  shipped  as  speedily  as  possible,  as 
navigation  was  about  closing."  \\niile  raising  one  of  the  trucks, 
a  part  of  the  machinery  gave  way,  owing  to  which  the  truck  fell 
upon  McGatrick,  breaking  both  his  legs.  To  recover  damages 
for  this  injury,  he  brought  suit  against  Mason. 

The  plea  was  advanced  by  Mason  that  McGatrick,  when  the 
injury  happened,  was  in  fault  himself,  being  in  the  commission 
of  an  unlawful  act.  It  became  necessary  for  the  court  to  argue 
this  point.  Judge  A.  G.  Thurman  used  the  following  language  in 
arguing  the  question,  what  is  a  work  of  necessity? 

"In  answering  this  question,  we  must  always  keep  in  mind,  that 
it  is  no  part  of  the  object  of  the  act  to  enforce  the  observance  of  a 
religious  duty.  The  act  does  not  to  any  extent  rest  upon  the  ground 
that  it  is  immoral  or  irreligious  to  labor  on  the  Sabbath,  any  more 
than  upon  any  other  day.  It  simply  prescribes  a  day  of  rest  from 
motives  of  public  policy  and  as  a  civil  regulation,  and  as  the  prohibi- 
tion itself  is  founded  on  principles  of  public  policy,  upon  the  same 
principles,  certain  exceptions  are  made,  among  which  are  works  of 
necessity  and  charity.  In  saying  this,  I  do  not  mean  to  intimate  that 
religion  prohibits  works  of  necessity  and  charity  on  the  Sabbath;  but 
merely  to  show  that  the  principles  upon  which  our  statutes  rest,  are 
wholly  secular;  and  that  they  are  none  the  less  so  because  they  may 
happen  to  concur  with  the  dictates  of  religion.  Thus  the  day  of  rest, 
prescribed  by  the  statute  is  the  Christian  Sabbath,  yet  so  entirely 
does  the  act  rest  upon  grounds  of  public  policy,  that,  as  was  said  in 
Bloom  V.  Richards,  2  O.  S.  R.  391,  392,  it  would  be  equally  constitu- 
tional and  obligatory,  did  it  name  any  other  day,  and  it  derives  none 
of  its  force  from  the  fact  that  the  day  of  rest  is  Sunday.  .  .  .  Nor  will 
it  do  to  limit  the  word  'necessity'  to  those  cases  of  danger  to  life, 
health  or  property,  which  are  beyond  human  foresight  or  control.  On 
the  contrary,  the  necessity  may  grow  out  of,  or  indeed  be  incident  to 
a  particular  trade  or  calling,  and  yet  be  a  case  of  necessity  within 
the  meaning  of  the  act.  For  it  is  no  part  of  the  design  of  the  act  to 
destroy,  or  impose  onerous  restrictions  upon  any  lawful  trade  or  busi- 
ness; and  hence  under  a  similar  statute  it  has  been  held  in  a  sister 
State,  that  it  is  lawful  to  keep  a  blast  furnace  at  work  on  Sunday,  be- 
cause it  is  a  work  of  necessity.  So,  too,  it  has  been  held,  that  under 
special  circumstances,  a  mill  may  grind  on  that  day;  and  I  think  it 
will  hardly  be  questioned,  that  a  gas  company  may  supply  gas;  a 
water  company  water;  and  a  dairyman  milk,  to  their  respective  cus- 
tomers, on  that  day." 

In  1898  at  the  January  term  of  the  Supreme  Court  of  Ohio 
the  case  of  the  State  v.  Powell  was  tried.  In  this  case  the  effort 
was  made  to  show  that  the  statute  making  it  unlawful  to  engage 


64  OHIO. 

in  "any  base  ball  playing"  is  tmconstitiitional.  (58  O.  R.  324 — 
346).  It  was  maintained  by  the  counsel  for  the  State,  that  the 
enacting  of  such  a  law  "\yas  plainly  within  the  domain  of  the 
legislative  power  commonly  called  the  police  power." 

"This  statute  under  discussion  does  not  forbid  or  interfere  with  any 
one  in  the  worship  of  Almighty  God  'according  to  the  dictates  of  his 
own  conscience.'  We  have  never  heard  the  contention,  and  do  not 
expect  to  hear  it,  that  playing  base  ball  is  an  act  of  worship,  which  the 
conscience  of  any  one  requires  to  be  performed  on  Sunday.  It  is 
not  essential  to  the  exercise  of  the  police  power  of  the  legislature, 
that  the  matter  in  respect  to  which  it  is  exercised  must  be  in  its  na- 
ture injurious;  or  as  the  Court  below  is  reported  to  have  expressed 
it.  a  matter  malum  in  se." 

Judge  Marshall  in  delivering  the  opinion  of  the  court,  among  other 
things  said: 

"The  policy  of  Sunday  laws  is  based  upon  the  observed  fact,  de- 
rived from  long  experience  and  the  custom  of  all  nations,  that  per- 
iods of  rest  from  ordinary  pursuits  are  requisite  to  the  well-being, 
morally  and  physically,  of  a  people.  If  there  were  no  such  regularly 
recurring  periods,  there  is  reason  to  believe  that  the  masses  would 
become  morbid  in  mind,  crime  would  multiply,  and  degeneracy  likely 
ensue."  "Religious  liberty  does  not  consist  in  the  right  of  any  sect 
to  oppose  its  views  to  the  policy  of  a  government.  Such  a  claim 
would  end  in  simple  intolerance  of  all  not  in  accord  with  the  senti- 
ments of  the  particular  sect.  Those  v/ho,  as  a  matter  of  religious 
faith,  observe  the  seventh  day  of  the  week  are  not  prohibited  from 
doing  so;  but  they  cannot  insist  that  others  shall  do  so,  nor  refuse  to 
observe  the  day  fixed  by  the  State  for  secular  reasons."  The  Judge 
pointed  out  that  the  argument  of  the  Counsel  for  Powell  was  based 
on  the  assumption  that  the  purpose  of  the  act  is  to  enforce  the  ob- 
servance of  Sunday  as  a  religious  requirement.  He  said  that 
'No  doubt  many  who  advocate  Sunday  observance,  particularly 
the  Christian  ministry,  do  so  from  the  persuasion  that  our 
Sunda^y  laws  are  designed  as  religious  observances  only,  and 
insist  that  they  shall  be  more  rigidly  enforced  that  the  people  may  be 
more  accessible  to  the  influence  of  the  Christian  pulpit.  However, 
desirable  this  may  be  from  a  Christian  standpoint,  it  is  certain  that  it 
is  not  in  the  power  of  the  Legislature  to  accomplish  this  by  any  direct 
legislation,  so  long  as  religious  liberty  is  guaranteed,  as  it  is,  in  our 
bill  of  rights.  ...  A  law  enacted  for  sufficient  reasons  of  a  secular 
nature— as  the  public  health,  cannot  be  held  invalid  because  there  is  a 
variety  of  religious  notions  upon  the  subject.  Nor  can  the  States  be 
iprevented  from  adopting  certain  civil  regulations,  recommended  by  a 
wise  public  policy,  simply  because  found  to  be  in  accord  with  the  teach- 
ing of  some  religion.  There  is  probably  no  religious  observance  that 
icould  not  be  enforced  as  a  secular  duty  without  violating  the  guaran- 


OHIO.  65 

•tee  of  religious  liberty,  where  there  are  sufficient  secular  reasons  for 
^oing  so,  independent  of  what  is  ordained  as  a  matter  of  religion.  In 
general,  where  there  are  secular  and  religious  reasons  for  the  same 
)bservance  or  law,  the  observance  or  law  may  be  adopted  as  a  civil  reg- 
ilation  by  the  legislature  for  the  attainment  of  the  secular  purposes; 
ind  when  enforced  for  these  purposes  alone,  no  one  can  complain  of  it 
simply  because  the  observance  or  law  finds  support  in  the  precepts  of 
some  religion.  It  is  enjoined  for  secular  and  not  religious  reasons.  It 
might  be  questioned  whether  the  Jewish  Sabbath  was  prescribed  purely 
as  a  religious  observance,  and  without  any  regard  to  the  temporal  wel- 
fare of  the  people.  It  must  be  remembered  that  the  Jewish  Govern- 
ment was  in  the  nature  of  a  theocracy,  and  its  precepts  were  given 
without  much  regard  to  what  was  of  a  spiritual  nature,  and  what  was 
•secular  and  related  to  the  temporal  government  of  the  people  alone." 

In  March  1898,  in  State  v.  Goode  et  al,  the  same  que.stion 
was   considered.     Judge   Fisher    dehvered  the    opinion    of   the 

court.     He  said : 

"The  validity  of  the  Sunday  laws  has  been  repeatedly  passed  upon 
and  in  clear  and  vigorous  language  sustained  by  our  Supreme  Court, 
not  on  the  ground  that  the  day  is  holy,  and  by  Christians  observed 
^s  a  day  for  religious  thought  and  worship,  but  on  the  ground  that  it 
is  the  day  set  by  the  State  for  rest,  quiet  and  peace,  for  the  welfare, 

liealth  and  happiness  of  all  people,  Jew,  Christian  and  unbeliever 

In  exercising  the  power  to  name  a  day  of  rest,  the  legislature  could 
have  named  any  other  day  in  the  week,  and  required  its  observance, 
That  it  named  Sunday  is  not  strange;  in  fact  being  a  Christian  peo- 
ple, it  would  have  been  passing  strange  indeed,  had  any  other  day  than 
Sunday  been  named. 

"When  the  Pilgrim  Fathers  landed  at  Plymouth  Rock,  they  brought 
with  them  not  only  the  spirit  of  religious  liberty — the  right  to  worship 
Almighty  God  according  to  the  dictates  of  one's  own  conscience — but 
they  brought  also,  as  well,  the  Christian  Sabbath,  and  the  one  be- 
came as  much  a  part  of  the  organic  or  fundamental  law  of  the  land  as 
the  other,  and  from  the  very  beginning  of  the  establishment  of  the 
Colonial  Governments  down  to  the  present  time,  the  right  to  regulate 
the  observance  of  the  one,  as  a  fixed  period  of  rest  and  cessation  from 
labor,  has  been  as  broadly  recognized  as  has  been  the  right  of  absolute 
freedom  of  religious  worship. 

"While  the  right  to  enjoy  absolute  religious  liberty  and  the  right 
to  appoint  a  day  of  rest  and  regulate  its  observance  have  gone  hand 
in  hand  from  the  very  formation  of  the  government,  it  has  never  been 
questioned  that  thi^  broadest  enforcement  of  the  one  in  any  way  con- 
flicts with,  or  hinders  the  broadest  enjoyment  of  the  other,  because  the 
■day  fixed  for  rest  is  the  Sabbath  day."  (5  Nisi  Prius  Reports,  179, 
i898.) 


66  OHIO. 

The  cases  already  cited  in  which  the  constitutionaHty  of  the 
law  is  maintained  set  forth  with  considerable  explicitness  the  in- 
terpretation of  the  law.  Rut  few  additional  cases  need  therefore 
to  be  given. 

In  Swisher  v.  Williams  the  efifort  was  made  to  void  a  deed 
because  executed  on  the  Lord's  day.  The  Court  held  that  the 
law  v/as  violated,  both  parties  partaking  of  the  sin.  But  it  was 
added, 

"The  law  does  not  require  of  us  to  enable  either  party  to  add  ta 
the  sin  by  breaking  the  faith  pledged  on  that  day,  and  commit  a  fraud 
out  of  assumed  regard  for  the  Sabbath  day."  (Wright's  Reports,  754, 
1834.) 

In  Nagle  v.  Brown  it  was  held  that  "It  is  not  unlawful  in  this- 
State  to  travel  upon  public  highways,  for  pleasure  merely,  upon  the 
Sabbath  day.  The  due  and  legal  observance  of  the  Sabbath  day  is 
regulated  by  statute.  Act  of  March  30,  18G4,  Swan  &  Saylor  289.  In 
addition  to  'Common  labor  (works  of  necessity  and  charity  only  ex- 
cepted), the  statute  makes  it  unlawful  for  any  person  of  fourteen  years- 
or  upward  to  be  found  on  the  first  day  of  the  week,  commonly  called 
Sunday,  sporting,  rioting,  quarreling,  hunting,  fishing  or  shooting.'' 
Beyond  these  inhibitions  the  observance  o'f  the  day  is  left  to  the  con- 
science and  religious  convictions  of  the  citizen;  and  in  our  judgment 
the  innocent  and  healthful  exercise  of  riding  or  driving,  is  not  withia 
the  meaning  of  the  terms  of  the  inhibition."     (37  O.  R.  7,  1881.) 

In  1885  at  the  January  term  of  the  Ohio  Supreme  Court,  the 
question  was  decided  whether  or  not  the  publication  of  the  pre- 
liminary and  other  ordinances,  with  respect  to  a  street  improve- 
ment, in  a  newspaper  of  general  circulation,  in  accordance  with 
the  terms  of  the  statute,  is  a  valid  and  legal  publication,  although 
such  paper  is  published  only  on  Sunday."  (Hastings  v.  Colum- 
bus, and  Shufflin  v.  Columbus.  42  O.  R.  585).  In  these  cases 
the  Court  said : 

"Even  if  publication  in  a  Sunday  newspaper  is  not  such  publica- 
tion as  the  statute  contemplates;  still  where  the  newspaper  is  of  gen- 
eral circulation  in  the  municipal  corporation  and  it  is  shown  to  be 
probable  that  notice  of  the  proceeding  reached  all  interested  therein, 
the  irregularity  of  such  publication  in  a  Sunday  newspaper  does  not 
go  to  the  power  to  assess,  but  brings  the  case  within  the  curative  pro- 
visions of  the  municipal  code  of  18G9,  §550;  Rev.  Stats,  §2289." 


OKLAHOMA.  67 

Most  people  on  reading-  the  Ohio  Sabbatli  law  would  pro- 
nounce it  equal  to  the  best.  Its  prohibitory  clauses  comprehend 
most  forms  of  Sabbath  desecration,  it  is  not  weakened  bv  a 
lengthy  list  of  exceptions,  its  penalties  are  adequate.  But  on 
reading  some  of  the  judicial  opinions  fears  begin  to  arise  lest  no 
suflficent  constitutional  basis  be  left  for  it  to  rest  upon.  Of  a 
thousand  opinions  examined  relating  to  the  Sabbath  laws  of  the 
different  States,  that  of  Jndge  Thurman  is  the  only  one  that  de- 
nies that  Christianity  is  part  of  the  common  law.  Such  a  denial 
is  often  made  by  attorneys  in  pleading  cases  of  violation  of  laws 
against  Sabbath  desecration,  profanity,  and  other  vices,  but  it  is 
a  rare  thing  to  find  it  in  a  judicial  opinion.  This  point  is  more 
fully  considered  in  Chapter  VIII.,  but  it  should  be  here  observed 
I  that  when  this  fact  is  denied  men  enter  upon  a  course  of  the 
wildest  kind  of  illogical  reasoning.  It  is  cause  of  profound 
gratitude  that  in  1898,  forty-five  years  after  Judge  Thurman 
handed  down  his  opinion,  an  opinion  of  the  opposite  kind  was 
rendered  by  Judge  Fisher.  While  he  does  not  in  so  many  words 
say  that  Christianity  is  part  of  the  common  law  he  says  what 
means  the  same  thing  when  he  declares  that  the  Christian  Sab- 
bath is  as  much  a  part  of  the  organic  or  fundamental  law  of  the 
land  as  is  religious  liberty.  As  the  case  now  stands  Ohio  is  in 
the  front  rank  both  as  to  the  substance  of  its  Sabbath  law  and 
the  character  of  the  opinions  by  which  it  is  upheld. 

OKI.-AHO-MA.      (1893). 

The  law  of  Oklahoma  on  '"Sabbath  Breaking"  is  found  in 
Article  4,  entitled  "Of  Crimes  against  Religion  and  Conscience," 
it  is  the  same  as  the  law  of  North  Dakota.  The  penalty,  how- 
ever, is  one  dollar. 

PENNSYLVANIA.      (1S94). 

"Sunday"  is  the  title  of  the  Sections  of  the  law  of  this  State 
relating  to  the  day  of  rest.     They  are  as  follows : 

"1.  No  person  or  persons  upon  the  first  day  of  the  week,  shall 
serve  or  execute,  or  cause  to  be  served  or  executed,  any  writ,  precept,, 
warrant,  order,  judgment  or  decree,  except  in  case  of  treason,  felony 
or  breach  of  the  peace;  but  the  serving  of  any  such  writ,  precept,  war- 
rant, order,  judgment  or  decree,  shall  be  void,  to  all  intents  and  pur- 


68  PENNSYLVANIA. 

poses  whatsoever;  and  the  person  or  persons  so  serving  or  executing 
the  same,  shall  be  as  liable  to  the  suit  of  the  party  grieved,  and  to  an- 
swer damages  to  him  for  doing 'thereof ,  as  if  he  or  they  had  done  the 
same  without  any  writ,  precept,  warrant  or  order,  judgment  or  decree 
at  all. 

"2.  No  part  of  any  act  of  assembly  heretofore  passed,  shall  be 
construed  to  require  any  canal  or  railroad  company  to  attend  their 
works  on  the  Sabbath  days,  for  the  purpose  of  expediting  or  aiding 
the  passage  of  any  boat,  craft,  or  vehicle  along  the  same;  any  clause 
or  clauses  in  their  respective  charters,  imposing  a  penalty  for  not  aid- 
ing boats,  crafts  or  vehicles  to  pass  within  a  certain  time,  to  the  con- 
trary notwithstanding. 

3.  If  any  person  shall  do  or  perform  any  worldly  employment  oi 
business  whatsoever  on  the  Lord's  day,  comm.only  called  Sunday 
(works  of  necessity  and  charity  only  excepted),  shall  use  or  practice 
any  unlawful  game,  hunting,  shooting,  sport  or  diversion  whatsoever 
on  the  same  day,  and  be  convicted  thereof,  every  such  person  so  of- 
fending shall,  for  every  such  offense,  forfeit  and  pay  four  dollars,  to 
be  levied  by  distress;  or  in  case  he  or  she  shall  refuse  or  neglect  to 
pay  the  said  sum,  or  goods  and  chattels  cannot  be  found,  whereof  to 
levy  the  same  by  distress,  he  or  she  shall  suffer  six  days'  imprison- 
ment in  the  house  of  correction  of  the  proper  county;  Provided,  al- 
ways, That  nothing  herein  contained  shall  be  construed  to  prohibit  the 
dressing  of  victuals  in  private  families,  bakehouses,  lodging-houses, 
inns  and  other  houses  of  entertainment,  for  the  use  of  sojourners,  trav- 
elers or  strangers,  or  to  hinder  watermen  from  landing  their  passen- 
gers, or  ferrymen  from  carrying  over  the  water  travelers,  or  persons 
removing  with  their  families  on  the  Lord's  day,  commonly  called  Sun- 
day, nor  to  the  delivery  of  milk  or  the  necessaries  of  life,  before  nine 
of  the  clock  in  the  forenoon,  nor  after  five  of  the  clock  in  the  after- 
noon of  the  same  day.  * 

"4.  Provided  always.  That  every  such  prosecution  shall  be  com- 
menced within  seventy-two  hours  after  the  offense  shall  be  committed. 
"5.  It  shall  be  lawful  for  the  select  and  common  councils  of  the  city 
of  Philadelphia,  the  corporation  of  the  district  of  Southwark  and  the 
commissioners  of  the  incorporated  part  of  the  Northern  Liberties,  re- 
spectively, to  make,  ordain  and  pass  such  ordinance  or  ordinances  as 
they  may  judge  proper  for  the  better  regulation  of  the  markets  holden 
in  the  said  city  and  districts  aforesaid,  on  the  first  day  of  the  week, 
commonly  called  Sunday. 

''6.  So  much  of  the  act  passed  the  22d  day  of  April,  one  thousand 
eight  hundred  and  ninety-four,  entitled  'An  act  for  the  prevention  of 
vice  and  immorality,  and  for  other  purposes,'   as  relates  to  the  sale  of 


*In  LS67  the  restriction  upon  the  delivery  of  milk  was  repealed  so  far  as  it  relates  to  the 
Ceiuitj  of  Allegheny. 


PENy^  1  'L  VA  NIA .  69 

the  necessaries  of  life,  on  the  first  day  of  the  week,  commonly  called 
Sunday,  so  far  as  respects  the  city  and  districts  aforesaid,  be  and  the 
same  is  hereby  repealed. 

"7.  All  persons  who  are  found  drinking  and  tippling  in  ale-houses, 
taverns  or  other  public  house  or  place,  on  the  first  day  of  the  week, 
commonly  called  Sunday,  or  any  part  thereof,  shall,  for  every  offense 
forfeit  and  pay  one  shilling  and  six  pence  to  any  constable  that  shall 
Jemand  the  same,  to  the  use  of  the  poor;  and  all  constables  are  hereby 
Bmpowered  and  by  virtue  of  their  office  required,  to  search  public  houses 
and  places  suspected  to  entertain  such  tipplers,  and  them,  when  found, 
quietly  to  disperse;  but  in  case  of  refusal,  to  bring  the  persons  so  re- 
lusing  before  the  next  justice  of  the  peace,  who  may  commit  such  of- 
fenders to  the  stocks,  or  bind  them  to  their  good  behavior  as  to  him 
shall  seem  requisite.  And  the  keepers  of  such  ale-houses,  taverns  or 
other  public  house  or  place,  as  shall  countenance  or  tolerate  any  such 
practices,  being  convicted  thereof,  by  the  view  of  a  single  magistrate, 
his  own  confession,  or  the  proof  of  one  or  more  credible  witnesses, 
shall,  for  every  offense,  forfeit  and  pay  ten  shillings,  to  be  recovered  as 
and  for  the  uses  above  said. 

"8.  Provided  always.  That  nothing  in  this  act  be  construed  to  pre- 
vent victualling-houses  or  other  public  house  or  place  from  supplying 
the  necessary  occasions  of  travellers,  inmates,  lodgers  or  others,  on 
the  first  day  of  the  week,  with  victuals  and  drink  in  moderation,  for  re- 
freshment only;  of  which  necessary  occasion  for  refreshment,  as  also 
moderation,  the  magistrate  before  whom  complaint  is  made,  shall  be 
judge:  any  law,  usage  or  custom  in  this  province  to  the  contrary  not- 
withstanding. 

"9.  It  shall  not  be  lawful  for  any  person  or  persons,  to  sell,  trade 
ar  barter  in  any  spirituous  or  malt  liquors,  wine  or  cider,  on  the  first 
day  of  the  week,  commonly  called  Sunday;  or  for  the  keeper  or  keepers 
of  any  hotel,  inn,  tavern,  ale  house,  or  other  public  house  or  place 
knowingly  to  allow  or  permit  any  spirituous  or  malt  liquors,  wine  or 
cider,  to  be  drank  on  or  within  the  premises  or  house  occupied  or  kept 
by  such  keeper  or  keepers,  his,  her  or  their  agents  or  servants,  on  the 
said  first  day  of  the  week. 

"10.  Any  person  or  persons  violating  the  provisions  of  the  forego- 
ing section,  shall,  for  each  and  every  offense,  forfeit  and  pay  the  sum 
of  fifty  dollars,  one-half  of  which  shall  be  paid  to  the  prosecutor,  and 
the  other  half  to  the  guardians  of  the  poor  of  the  city  or  county  in 
which  suit  is  brought,  or  in  counties  having  no  guardians  of  the  poor, 
then  to  the  overseers  of  the  poor  of  the  township,  ward  or  borough  in 
which  the  offense  was  committed;  to  be  recovered  before  any  mayor, 
alderman,  burgess  or  justice  of  the  peace,  as  debts  of  like  amount  are 
now  by  law  recoverable,  in  any  action  of  debt  brought  in  the  name  of 
the  commonwealth,  as  well  for  the  use  of  the  guardians  of  the  poor  (or 
for  the  overseers  of  the  poor,  or  the     township,  ward  or   borough,    as 


70  PENNS  YL  VA  NIA . 

the  case  may  be)  as  for  the  person  suing:     Provided,  That  when  any 
prosecutor  is  himself  a  witness,  on  any  trial  under  the  provisions  of 
this  section,  then  the  whole  penalty  or  forfeiture  shall  be  paid  to  the 
;uardians  or  overseers  as  aforesaid:     And  provided   further.    That   it 
hall  be  a  misdemeanor  in  office,  for  any  such  mayor,  alderman,  bur- 
jess  or  justice  of  the  peace,  to  neglect  to  render  to  the  said  guardians 
»f  the  poor  and  prosecutor  the  amount  of  such  penalty,  within  ten  days 
!rom  the  payment  of  the  same. 

"11.  In  addition  to  the  civil  penalties  imposed  by  the  last  preced- 
ing section,  for  a  violation  of  the  provisions  of  the  first  section  of  this 
ict,  every  person  who  shall  violate  the  provisions  of  that  section,  shall 
be  taken  and  deemed  to  have  committed  a  misdemeanor,  and  shall,  on 
conviction  thereof,  in  any  criminal  court  in  this  commonwealth,  be  fined 
in  any  sum  not  less  than  ten,  nor  more  than  one  hundred  dollars,  and  be 
imprisoned  in  the  county  jail  for  a  period  not  less  than  ten,  nor  more 
than  sixty  days,  at  the  discretion  of  the  court. 

"12.  All  penalties,  fines  and  forfeitures  imposed,  incurred  or  paid, 
under  the  act  to  which  this  is  a  supplement,  except  so  far  as  part 
thereof  is  payable  to  the  prosecutor,  shall  be  paid  over  to  the  guard- 
ians, directors  or  other  representatives  of  the  poor  of  the  city,  dis- 
trict or  county  in  which  the  offense  was  committed.  (Brightly's  Pur- 
rdon's  Digest,  Vol.  2,  pp.  1950-1953.) 

"A  supplement,  for  the  better  regulation  of  the  Sabbath.  1.  That 
the  mayors  of  the  cities  of  Pittsburgh  and  Allegheny,  and  the  burgesses 
if  the  several  boroughs  in  the  county  of  Allegheny,  shall  have  and  ex- 
ercise all  the  powers  of  justices  of  the  peace  and  aldermeii.  In  all  cases 
5f  violation  of  the  first  section  of  an  act  to  prevent  the  sale  of  intoxi- 
cating liquors  on  the  first  day  of  the  week,  commonly  called  Sunday, 
approved  on  the  twenty-sixth  day  of  February,  Anno  Domini  one  thou- 
sand eight  hundred  and  fifty-five:  Provided  that  such  mayors  and  bur- 
gesses shall  be  subject  to  the  proviso  in  the  second  section  of  said  act; 
and  in  case  any  person  or  persons  convicted  before  any  mayor,  burgess, 
alderman  or  justice  of  the  peace  of  a  violation  of  the  first  section  of  an 
act  to  prevent  the  sale  of  intoxicating  liquors  on  the  first  day  of  the 
week,  commonly  called  Sunday,  approved  on  the  twenty-sixth  of  Febru- 
ary, Anno  Domini  one  thousand  eight  hundred  and  fifty-five,  shall  refuse 
or  neglect  forthwith  to  pay  the  fine  lawfully  imposed  for  such  violation, 
Tvith  costs,  and  no  goods  or  chattels  can  be  found  whereof  to  levy  the 
same  by  distress,  he,  she  or  they  shall  be  committed  to  the  common  jail 
■of  the  proper  county  for  a  term  of  not  less  than  ten,  nor  more  than 
thirty  days,  at  the  discretion  of  the  mayor,  burgess,  alderman,  or  jus- 
tice of  the  peace  before  whom  such  conviction  shall  have  been  had. 

"2.  That  the  mayors  and  burgesses  mentioned  in  the  first  section 
of  this  act,  shall  have  and  exercise  all  the  powers  of  justices  of  the 
peace  and  aldermen,  in  all  cases  of  violation  of  the  first  section  of  the 
act  approved  the  twenty-second  of  April,  Anno  Domini  one  thousand 
seven  hundred  and  ninety-four,  entitled,  "An  act  for  the  prevention  of 


PENNSYLVANIA.  71 

'Vice  and  immorality,  and  of  unlawful  gaming,  and  to  restrain  disorderly 
:sports  and  dissipation,"  and  in  all  actions  for  penalties  for  violation  of 
acts  of  assembly,  commonly  known  as  qui  tam  actions. 

"3.  That  any  person  violating  the  provisions  of  the  first  section  of 
said  act  for  the  suppression  of  vice  and  immorality,  and  of  unlawful 
gaming,  and  to  restrain  disorderly  sports  and  dissipation,  approved 
April  twenty-second.  Anno  Domini  one  thousand  seven  hundred  and 
ninety-four,  within  the  county  of  Allegheny,  being  summarily  convicted 
thereof  before  any  mayor,  burgess,  justice  of  the  peace  or  alderman, 
shall  forfeit  and  pay  the  sum  of  twenty-five  dollars  with  costs,  and  in 
default  of  payment,  or  of  goods  to  levy  upon  to  satisfy  the  same,  shall 
be  conmiitted  to  the  county  prison  for  not  less  than  ten,  nor  more  than 
thirty  days."     (  P.  L.  321,  IS^S.) 

Seciiuii  17  of  the  chapter  on  'Game"  declares  that  "'There  shall  be  no 
hunting  or  shooting  or  fishing  on  the  first  day  of  the  week,  called  Sunday  ; 
and  any  person  oflfending  against  the  provisions  of  this  section  shall  be 
liable  to  a  penalty  of  twenty-five  dollars."     (Vol.  1,  p.  94(5.) 

The  following  was  enacted  in  1897: 

"1.  There  shall  be  no  hunting  or  shooting  on  the  first  day  of  the 
week  called  Sunday,  and  any  person  offending  against  the  provisions  of 
this  section  shall  be  liable  to  a  penalty  of  twenty-five  dollars  for  each 
and  every  offense,  or  by  imprisonment  in  the  county  jail  for  a  period 
of  one  day  for  each  dollar  of  penalty  imposed.  (Brightly's  Supple- 
ment, 825.) 

The  constittitionality  of  the  Pennsylvania  Sabbath  law  was 
ptit  to  the  test  in  181 7  in  the  case  of  the  Commonwealth  v.  Wolf, 
and  again  in  1848  in  the  case  of  Specht  v.  Commonwealth.  The 
law  was  upheld  in  both  cases.  In  the  latter  case  the  contention 
in  behalf  of  the  plaintiff,  who  was  a  Seventh  Day  Baptist,  was 
that  the  law  is  tmconstitutional  on  these  grounds: 

"It  treats  the  first  day  of  the  week  as  a  holy  or  sacred  day,  and  if 
the  legislature  can  direct  that  religious  observance,  there  is  no  limit  to 
their  power  over  religious  subjects.  If  they  can  direct  the  people  to 
stay  at  home  quietly,  they  can  direct  them  to  go  to  church,  and  if  they 
can  direct  them  to  attend  church,  they  can  indicate  the  church  to  be  at- 
tended. In  short,  if  they  have  any  power  over  religious  subjects,  they 
have  all  power.  Such  power  would  be  a  perfect  union  of  Church  and 
State,  so  much  abhorred  by  the  people  of  this  republic." 

Judge  Bell  in  giving  the  opinion  of  the  Court  said:  ''The  constitu- 
tion of  this  State  secures  freedom  of  conscience  and  equality  of  relig- 
ious rights.  No  man,  living  under  th?  protection  of  our  institutions, 
can  be  coerced  to  profess  any  form  of  religious  belief,  or  to  practice  any 
•ponuliar  mode  of  worship,  in  preference  to  another.  In  this  respect,  the 
Christian,  the  Jew,  the  Mohammedan,  and  the  Pagan,  are  alike  en- 
titled to  protection.  Nay,  the  Infidel,  who  madly  rejects  all  belief  in  a 
Divine   Essence,   may  safely   do   so,    in   reference   to   civil   punishment. 


72  PENNSYLVANIA. 

so  long  as  he  refrains  from  the  wanton  and  malicious  proclamation  of" 
his  opinions  with  intent  to  outrage  the  moral  and  religious  convictions 

of  a  community,  the  vast    majority  of    whom    are    Christians 

"Though  it  may  have  been  a  motive  with  the  law-makers  to  prohibit 
the  profanation  of  a  day  regarded  by  them  as  sacred — and  certainly 
there  are  expressions  used  in  the  statute  that  justify  this  conclusion — it 
is  not  perceived  how  this  fact  can  vitally  affect  the  question  at  issue. 
All  agree  that  to  the  well-being  of  society,  periods  of  rest  are  absolutely 
necessary.  To  be  productive  of  the  required  advantage,  these  periods 
must  recur  at  stated  intervals,  so  that  the  mass  of  which  the  commun- 
ity is  composed,  may  enjoy  a  respite  from  labor  at  the  same  time. 
....  "Some  one  day  must  be  selected,  and  it  has  been  said  the  round  of 
the  week  presents  none  which,  being  preferred,  might  not  be  regarded 
as  favoring  some  one  of  the  numerous  religious  sects  into  which  man- 
kind are  divided.  In  a  Christian  community  where  a  very  large  ma- 
jority of  the  people  celebrate  the  first  day  of  the  week  as  their  chosen 
period  of  rest  from  labor,  it  is  not  surprising  that  that  day  should  have- 
received  the  legislative  sanction:  and  as  it  is  also  devoted  to  religious 
observances,  we  are  prepared  to  estimate  the  reason  why  the  statute 
should  speak  of  it  as  the  Lord's  day,  and  denominate  the  infraction  of 
its  legalized  rest,  a  profanation.  Yet  this  does  not  change  the  char- 
acter of  the  enactment.  It  is  still,  essentially,  but  a  civil  regulation 
made  for  the  government  of  man  as  a  member  of  society,  and  obedience 
to  it  may  properly  be  enforced  by  penal  sanctions.  To  say  that  one  of 
the  objects  of  the  legislature  was  to  assert  the  sanctity  of  the  particular 
day  selected,  is  to  say  nothing  in  proof  of  the  unconstitutionality  of  the 
act,  unless  in  this  the  religious  conscience  of  others  has  been  offended 
and  their  rights  invaded. 

"But  it  is  urged,  with  apparent  conviction  of  its  truth,  that  to  com- 
pel men  to  refrain  from  labor,  solely  from  regard  to  the  imputed  holi- 
ness of  a  particular  day,  is,  within  the  meaning  of  the  constitution,  to 
'control'  the  religious  observance,  and  to  'interfere'  with  and  constraini 
the  consciences  of  those  who  honestly  disbelieve  the  asserted  sanctity 
of  the  selected  day.  We  cannot  assent  to  this.  So  long  as  no  attempt 
is  made  to  force  upon  others  the  adoption  of  the  belief  entertained  by 
the  governing  power,  or  to  comp.el  a  practice  in  accordance  wi'th  it, 
so  long  is  conscience  left  in  the  enjoyment  of  its  natural  right  of  in- 
dividual decision  and  independent  religious  action.     There  is  nothing^ 

to  prevent  the  unrestrained  expression  of  an  adverse  belief The 

error  of  the  plaintiff's  position  is  that  it  confounds  the  reason  of  the 
prohibition  with  its  actual  effect,  and  thus  mistakes  the  mere  restraint 
of  physical  exertion  for  the  fetters  that  clog  the  freedom  of  mind  and 
conscience."  "It  intermeddles  not  with  the  natural  and  indefeasible 
right  of  all  men  to  worship  Almighty  God  according  to  the  dictates  of 
their  own  consciences;  it  compels  none  to  attend,  erect,  or  support  any 
place  of  worship,  or  to  maintain  any  ministry  against  his  consent;  it 
pretends  not  to  control  or  to  interfere  with  the  rights  of  conscience,  andi 


PEXXSVLVAMA.  73. 

it  establishes  no  preference  for  any  religious  establishment  or  mode  of 
worship.  It  treats  no  religious  doctrine  as  paramount  in  the  State;  it  en- 
forces no  unwilling  attendance  upon  tho  celebration  of  Divine  wor- 
ship. It  says  not  to  the  Jew  or  Sabbatarian,  You  shall  desecrate  the 
day  you  esteem  as  holy,  and  keep  sacred  to  religion  that  we  deem  to 
be  so.  It  enters  upon  no  discussion  of  rival  claims  of  the  first  and 
seventh  days  of  the  week,  nor  pretends,  to  bind  upon  the  conscience  of 
any  man  any  conclusion  upon  a  subject  which  each  must  decide  for 
himself.  It  intrudes  not  into  the  domestic  circle  to  dictate  when, 
where,  or  to  what  god  its  inmates  shall  address  their  orisons;  nor  does 
it  presume  to  enter  the  synagogue  of  the  Israelite,  or  the  church  of  the 
Seventh-day  Christians,  to  command  or  even  persuade  their  attendance 
in  the  temples  of  those  who  especially  approach  the  altar  on  Sunday. 
It  does  not,  in  the  slightest  degree,  infringe  upon  the  Sabbath  of  any 
sect,  or  curtail  their  freedom  of  worship." 

"The  only  remaining  ground  upon  which  the  plaintiff  in  error  at- 
tacks the  validity  of  the  statute,  is  found  in  the  assumption  that,  in 
conscience,  he  is  as  fully  bound  to  attend  to  his  secular  affairs  upon  the 
first  six  days  of  the  week,  as  to  cease  from  labor  on  the  seventh. 
Were  this  so,  the  law  which  compels  him  to  inaction  upon  one  of  the  ■ 
six  might  well  be  regarded  as  an  invasion  of  his  conscientious  convic- 
tions. But  for  this  supposed  article  of  his  faith,  his  counsel  refers  us 
to  no  other  warrant  than  that  command  of  the  decalogue  which 
teaches,  'Remember  the  Sabbath  day  to  keep  it  holy;  six  days  shalt 
thou  labor  and  do  all  thy  work,  but  the  seventh  day  is  the  Sabbath  of 
the  Lord  thy  God;  in  it  thou  shalt  not  do  any  work.'  But  without  other 
evidence  than  the  mere  suggestion  of  counsel,  we  cannot  believe  that 
the  religious  sect  to  which  the  plaintiff  in  error  belongs,  have  so  con- 
strued this  commandment  as  to  make  it  imperative  on  its  members, 
literally,  to  labor  on  every  day  of  the  week  other  than  the  seventh. 
Such  is  not  rationally  its  meaning,  nor  is  it  that  assigned  to  the  word 
by  the  ancient  people  to  whom  it  was  originally  delivered  by  the  Deity. 
From  the  beginning  even  until  now,  it  is  regarded  by  them  as  intended 
to  set  apart  a  day  of  religious  rest,  but  not  as  commanding  six  days  of 
labor.  Within  six  days  the  Israelite  was  directed  to  do  all  his  work, 
in  order  that  he  might  devote  the  seventh,  uninterruptedly,  to  the  ser- 
vice of  God,  but  it  was  never  imagined  that  he  was  under  an  impera- 
tive obligation  to  fill  up  each  day  of  the  other  six  with  some  worldly 
employment" 

"His  Honor,  Judge  Coulter,  concurred  in  the  judgment  of  the 
court,  as  to  the  constitutionality  of  the  act  of  Assembly  but 
dissented  from  the  grounds  , assumed  in  the  argument  He  held  it 
to  be  constitutional,  because  it  guarded  the  Christian  Sabbath  from 
profanation;  and,  in  the  language  of  the  act,  prohibited  work  or  world- 
ly employment  on  the  Lord's  day,  commonly  called  Sunday;  and  not  be- 
cause of  the  mere  usefulness  of  the  day  as  a  day  of  rest  and  cessation, 
from  worldly  labor."     (8  Pa.  312). 


74  PENNSYLVANIA. 

Again  in  the  case  of  Johnston  v.  the  Commonwealth  the 
constitutional  ground  of  Sabbath  laws  was  thoroughly  con- 
sidered. Judge  Woodward,  in  giving  the  opinion  of  the  court, 
said : 

"If  we  decide  that  necessity  and  charity  mean  convenience  (and 
this  is  the  essence  of  the  demand),  we  emasculate  the  statute,  and 
sweep  away  the  guards  which  the  legislature  threw  around,  not  only 
the  morals  of  society,  but  the  physical  health  and  well-being  of  both 
men  and. beasts.  If  Sunday  be  thus  surrendered  to  the  fierce  rivalry  of 
efforts  for  promoting  the  convenience  of  the  public,  it  might  as  well 
be  blotted  from  the  calendar  of  days,.  But  we  have  no  right  to  give 
up  this  institution.  It  has  come  down  to  us  with  the  most  solemn 
sanctions,  both  of  God  and  man,  and  if  we  do  not  appreciate  it  as  we 
ought,  we  are,  at  the  least,  bound  to  preserve  it.  We  liave  no  power  to 
repeal  the  Act  of  1794,  nor  to  make  its  exemption  of  worlds  of  charity 
and  necessity  include  works  of  mere  convenience.  Our  duty  requires  us 
to  construe  the  statute  so  as  to  accomplish  its  purpose,  which  was  to 
enforce  an  observance  of  Sunday,  instead  of  obliterating  it 

"Rest  and  the  public  worship  of  Almighty  God,  were  the  primary 
objects  of  the  institution,  both  as  a  divine  and  civil  appointment.  .  .  . 

"Our  fathers  who  planted  in  our  fundamental  law  the  assertion  of 
those  immortal  truths,  that  all  men  have  a  natural  and  indefeasible  right 
to  worship  Almighty  God  according  to  the  dictates  of  their  own  consci- 
ence, that  no  man  can  be  compelled  to  attend,  erect,  or  support  any 
place  of  public  worship,  and  that  no  human  authority  can  in  any  case 
whatever  control  or  interfere  with  the  rights  of  conscience,  enacted 
also  the  statutes  of  1705,  1786  and  1794,  for  the  suppression  of  worldly 
employments  on  Sunday.  So  far  from  conflicting  with  those  invaluable 
rights  of  conscience,  they  regarded  such  statutes  as  indispensable  to 
secure  them.  It  would  be  a  small  boon  to  the  people  of  Pennsylvania 
to  declare  their  indefeasible  right  to  worship  God  according  to  the  dic- 
tates of  their  consciences  amid  the  din  and  confusion  of  secular  em- 
ployments, and  with  desecrations  on  every  hand  of  what  they  conscien- 
tiously believe  to  be  hallowed  time.  These  statutes  were  not  designed 
to  compel  men  to  go  to  church,  or  to  worship  God  in  any  manner  incon- 
sistent with  personal  preferences;  but  to  compel  a  cessation  of  those 
employments  which  are  calculated  to  interfere  with  the  rights  of  those 
who  choose  to  assemble  for  public  worship.  The  day  was  set  apart  for 
a  purpose,  and  the  penal  enactments  guard  it,  but  they  leave  every 
man  free  to  use  it  for  that  purpose  or  not.  If  he  wish  to  use  it  for  the 
purpose  designed,  the  law  protects  him  from  the  annoyance  of  others — 
if  he  do  not,  it  restrains  him  from  annoying  those  who  do  so  use  it. 
Thus  the  law,  without  oppressing  anybody,  becomes  auxiliary  to  the 
rights  of  conscience. 

"And  there  are  other  rights  intimately  associated  with  the  rights  of 
■conscience,  which  are  worth  preserving.     The  right  to  rear  a  family 


PENNSYLVANIA.  75 

"With  a  becoming  regard  for  the  institutions  of  Christianity,  and  with- 
out compelling  them  to  witness  hourly  infractions  of  one  of  its  funda- 
mental laws— the  right  to  enjoy  the  peace  and  good  order  of  society 
and  the  increased  securities  of  life  and  property  which  result  from  a 
decent  observance  of  Sunday— the  right  of  the  poor  to  rest  from  labor, 
without  diminution  of  wages,  or  loss  of  employment— the  right  of 
beasts  of  burden  to  repose  one-seventh  of  their  time  from  their  unre- 
quited toil— these  are  real  and  substantial  interests  which  the  legisla- 
ture sought  to  secure  by  this  enactment;  and  when  has  legislation 
aimed  at  higher  objects?"     (22  Pa.  102,  1853). 

In  Omit  V.  Commonwealth,  involviug  the  right  of  a  licensed  innkeeper 
to  sell  liquor  on  the  Sabbath,  the  Supreme  Court  held  that  such  sales  are 
forbidden.  The  licensing  of  taverns  for  a  year  does  not  give  the  right  to 
sell  for  each  of  the  three  hundred  and  sixty-five  days.  "As  well  might  it 
be  urged  that  a  contract  for  hiring  for  a  year  would  compel  a  laborer  to 
work  on  Sundays,  or  that  an  auctioneer  who  is  licensed  under  Acts  of 
Assembly  for  a  3'ear,  might  pursue  his  business  on  the  fifty-two  Sundays  of 
i;he  j'ear  "  "Sunday  cannot  be  given  up.  Strangers  and  travelers  have  no 
light  to  demand  hospitality  at  such  a  price.  Rest  one  day  in  seven  was  en- 
joined b}'  the  precept  and  example  of  the  Author  of  our  existence  and  gov- 
ernment, founding  itself  on  Divine  appointment,  has  made  it  a  civil  institu- 
tion. 'For  the  ease  of  creation,'  said  our  old  Act  of  1705,  as  well  as  that 
people  may  enjoy  religious  privileges,  the  first  day  of  the  week  shall  be 
observed.  They  justly  regarded  it  as  essential  to  rebgious  freedom,  as  well 
as  to  physical  health  and  strength.  It  is  an  institution  deeply  seated  in  the 
religious  effections  of  the  community,  and  one  of  the  foundations  of  public 
morals,  and  of  our  political  fabric.  The  policy  of  no  such  system  as  that  of 
licensed  inns  can  prevail  to  abridge  it  of  its  proportions  or  its  power." 
(21  Pa.  426,  1853.) 

In  the  case  of  Mahoney  v.  Cook  the  Supreme  Court  said:  "The 
■declaration  that  Christianity  is  part  of  the  law  of  the  land,  is  a  sum- 
mary description  of  an  existing  and  very  obvious  condition  of  our  in- 
stitutions. We  are  a  Christian  people,  in  so  far  as  we  have  entered  into 
the  Spirit  of  Christian  institutions,  and  become  imbued  with  the  senti- 
ments and  principles  of  Christianity;  and  we  cannot  be  imbued  with 
them,  and  yet  prevent  them  from  entering  into  and  influencing,  more  or 
less,  all  our  social  institutions,  customs  and  relations,  as  well  as  all 
our  individual  modes  of  thinking  and  acting.  It  is  involved  in  otir  so- 
cial nature,  that  even  those  among  tis  who  reject  Christianity 
cannot  possibly  get  clear  of  its  influence,  or  reject  those  sentiments, 
customs  and  principles  which  it  has  spread  among  the  people,  so  that, 
like  the  air  we  breathe,  they  have  become  the  common  stock  of  the 
whole  country,  and  essential  elements  of  its  life. 

"It  is  perfectly  natural  therefore,  that  a  Christian  people  should 
have  laws  to  protect  their  day  of  rest  from  desecration.  Regarding 
it  as  a  day  necessarily  and  divinely  set  apart  for  rest  from  worldly  em- 
;ployments,  and  for  the  enjoyment   of  spiritual  privileges,  it  is  simply 


76  PENNSYLVANIA. 

absurd  to  suppose  that  they  would  leave  it  without  any  legislative  pro- 
tection from  the  disorderly  and  immoral.  The  sentiment  that  sustains 
it  must  find  expression  through  those  who  are  elected  to  represent  the 
will  of  their  constituents."  (26  Pa.  342,  1855).  This  was  a  suit  to  re- 
cover damages  for  the  wrecking  of  a  boat  on  Sabbath  in  a  navigable 
stream  by  an  obstruction  placed  there  by  the  defendant.  Damages  were 
awarded. 

In  the  Commonwealth  v.  Nesbit  the  Supreme  Court  again 
upheld  the  law,  saying : 

"We  are  not  forgetting  that  the  public  acts  of  our  Pennsylvania 
ancestors  abound  with  declarations  in  favor  of  liberty  of  conscience, 
and  that  some  regard  these  declarations  as  inconsistent  with  the  Sun- 
day laws.  But  a  little  reflection  shows  that  they  indicate  the  moral 
ideal  to  which  all  government  ought  to  approach  as  nearly  as  possible,  , 
rather  than  a  positive  principle  of  legislation.  And  in  applying  such 
declaration,  we  must  bear  in  mind,  that  they  proceed  from  an  earnestly 
Christian  people,  and  must  receive  a  practical  interpretation. 

"They  never  thought  of  tolerating  paganism  or  the  principle  of 
ecclesiastical  supremacy  in  civil  affairs,  on  the  ground  of  liberty  of 
conscience.  They  could  not  admit  this,  as  a  civil  justification  of  human 
sacrifices,  or  parricide,  or  infanticide,  or  thuggism,  or  of  such  modes 
of  worship  as  the  disgusting  and  corrupting  rites  of  the  Dyonisia,  and 
Aphrodisia,  and  Eleusinia,  and  other  festivals  of  Greece  and  Rome.  .  .  . 

"Every  Christian  man  is  sure  that  it  is  his  religion  that  has  sup- 
pressed the  pagan  customs  just  alluded  to,  and  that  to  it  is  due  the 
large  advance  in  justice,  benevolence,  truth,  and  purity  that  belongs 
to  modern  civilization;  that  it  has  purified  and  elevated  the  family  re- 
lations; that  it  has  so  elevated  the  moral  standards  of  society,  that, 
the  indecencies,  and  cruelties,  and  cheats  of  paganism  are  now  con- 
demned by  custom  and  by  law,  as  crimes.  And  he  is  very  sure  that 
the  Sabbath  and  its  institutions  were  the  prominent  means  of  this  pro- 
gress, and  are  essential  to  its  maintenance  and  continuance. 

"How,  then,  is  it  possible  for  a  Christian  people  to  avoid  protecting- 
such  a  day  and  its  institutions.  If  there  are  men  who  oppose  them  as 
superstitions,  let  them  at  least  respect  them  as  essential  constituents  of 
the  people's  life,  which  cannot  possibly  be  laid  aside  at  will.  If  strangers 
to  our  institutions  dislike  these  particular  ones,  let  them  accord  a  reason- 
able respect  to  us,  and  indulgence  to  our  customs,  and  they  will  soon  be 
reconciled  to  both,  and  find  other  matters  more  needing  their  reform- 
ing efforts By  our  Sunday  laws,  and  our  other  laws  against  vice 

and  immorality,  we  do  not  mean  to  enforce  religion;  we  admit  that  to- 
be  impossible.  But  we  do  mean  to  protect  our  customs,  no  matter  that 
they  may  have  originated  in  our  religion;  for  they  are  essential  parts 
of  our  social  life.  Instinctively,  we  defend  and  protect  them.  It  is 
mere  social  self-defensee,  and  not  a  matter  of  choice."  (34  Pa.  398,, 
1859). 

There  is  no  ambiguity  in  the  language  used  in  the  case  of  Common- 


PENNS  YL  VA  NIA .  7  7 

"wealth  V.  Eyer  when  it  was  declared  that  "Sabbath-breaking  is  a  vio- 
lation of  a  divine  as  well  as  a  human  law."     (1  S.  and  R.  347). 

In  1867  one  of  the  most  important  cases  that  has  arisen  in 
Pennsylvania  came  before  the  Supreme  Court  of  that  State. 
This  was  the  case  of  Sparhawk  v.  Union  Passenger  Railway  Co. 
This  company,  having  constructed  a  street  railway  in  Phila- 
delphia, began  running  its  cars  on  Sabbath.  Sparhawk  and 
•others  brought  a  bill  seeking  to  have  this  act  declared  unlawful, 
and  asking  for  an  injunction  restraining  the  company  from  run- 
ning its  cars  on  the  Sabbath,  on  the  ground  that  it  deprived  them 
•of  their  right  to  a  quiet  Sabbath  and  interrupted  the  worship  of 
'God.  Kenton,  a  stockholder  in  the  company  also  brought  a 
similar  suit.  The  case  was  first  heard  by  the  Supreme  Court  at 
Nisi  Prius,  and  the  injunction  was  granted.  Judge  Strong  de- 
livered the  opinion  of  the  court.     He  declared : 

"Christianity  is  part  of  the  common  law  of  this  State.     In  saying 

this  I  utter  no  new  doctrine But  if  Christianity  is  a  part  of  the 

common  law,  it  carries  with  it  a  civil  obligation  to  abstain  on  the 
Lord's  day  from  all  worldly  labor  and  business,  except  works  of  neces- 
sity and  mercy.  Christianity  without  a  Sabbath  would  be  no  Christian- 
ity." 

..."The  legislature  has  not  exempted  from  the  prohibition  acts 
which  may  conduce  to  the  convenience,  or  contribute  to  supply  the 
necessities,  of  individuals,  or  even  large  portions  of  the  people.  It 
must  be  presumed  they  considered  what  inconveniences  would  follow  a 
prohibition  of  worldly  labor  on  the  Lord's  day.  In  view  of  them,  as 
well  as  of  the  evils  flowing  from  the  absence  of  a  prohibition  of  such 
labor,  they  enacted  the  statute  of  1794.  Their  controlling  object  was 
to  protect  the  community  against  vice  and  immorality.  This  they  at- 
tempted to  do  by  declaring  illegal  all  worldly  labor  and  business,  ex- 
cept works  of  necessity  and  charity.  But  they  did  not  overlook  pub- 
lic and  individual  convenience.  In  the  proviso  of  the  act  they  declare 
how  far  worldly  labor  might  be  done,  not  necessary  to  the  agent,  but 
'^contributing  to  the  necessities  of  others.  The  enumeration  in  the 
proviso  of  things  allowed  to  be  done,  shows  what  was  intended  by  ex- 
cepting works  of  necessity  from  the  prohibitory  clause. 

"If  it  was  not  meant  by  the  act  to  forbid  work  which  might  be  a 
convenience  or  even  a  necessity  in  some  sense  to  others  than  the  la- 
borer, the  proviso  is  entirely  superfluous.  It  is  plain,  however,  that 
when  they  excepted  works  of  necessity,  they  meant  works  of  necessity 
to  him  who  does  them,  and  not  to  others.  If  this  is  not  so,  the  act  is 
without  force.  There  is  very  little,  if  any  worldly  business  that  does 
not  subserve  the  convenience  and  even  the  necessities  of  some  part  of 
the  community.  Food,  clothes,  shelter  and  furniture  are  undoubted 
mecessities.     But  may  the  agriculturist  justify  his     ordinary    worldly 


yS  PENNS  VL  VA  NIA . 

business  on  Sunday  by  the  plea  that  he  is  thereby  furnishing  foocf 
for  the  hungry?  May  the  cotton-mills,  woolen-mills,  and  clothing  es- 
tablishments of  the  country  be  driven,  as  usual,  and  without  cessation, 
on  the  Lord's  day,  because  they  are  thus  contributing  to  provide  cloth- 
ing for  those  who  need  it?  Is  the  business  of  the  carpenter  or  cabinet- 
maker to  move  on  through  the  seven  days  of  the  week,  uninterruptedly 
and  according  to  law,  because  others  may  need  houses  or  furniture? 
May  the  chemist  keep  his  laboratory  in  full  operation  on  Sunday,  be- 
cause medicines  are  necessary?  All  these  questions,  and  a  multitude 
of  others  of  similar  character,  must  be  answered  in  the  affirmative,  if 
running  railway  cars  on  Sunday  on  city  passenger  railways  is  a  work 
of  necessity  within  the  meaning  of  the  exception  in  the  act  of  1794.  It 
may  be  doubted  whether  keeping  theaters  and  places  of  public  amuse- 
ment open  on  Sunday  might  not  be  justified  by  the  same  line  of  argu- 
ment. 

"Pews  in  churches  are  real  property,  recognized  as  such  by  the 
law.  They  are  the  subject  of  sale,  and  they  often  bring  prices  equal 
to  the  value  of  many  small  farms.  An  action  may  be  maintained  for 
disturbance  of  their  enjoyment.  But  the  whole  value  of  a  pew  consists 
in  the  facilities  it  affords  for  joining  in  public  worship,  and  for  re- 
ceiving the  instruction  given  in  churches.  To  render  it  unfit  in  any 
way  for  the  purpose  for  which  such  property  is  designed  or  used,  is 
its  destruction,  and  it  may  amount  as  fully  to  an  irreparable  private 
wrong  as  is  any  tmlawful  act  against  which  a  chancellor  enjoins." 

The  defendants  put  in  answers  to  these  bills,' admitting  the 
running-  of  the  cars,  but  denying  that  this  was  a  violation  of  the 
law.  Testimony  was  taken  on  their  behalf,  from  ministers,, 
physicians  and  others,  to  show  that  the  running  of  the  cars  on 
the  Sabbath  was  necessary  in  attending  to  sick  and  going  to< 
places  of  worship,  affording  recreation  to  poor  people  living  in 
badly  ventilated  neighborhoods,  etc. 

It  was  agreed  that  all  of  the  affidavits,  etc.,  read  by  either 
party,  or  presented  at  the  argument  of  the  motions  for  prelimi- 
nary injunctions,  should  be  considered  as  proof,  taken  in  both 
cases  before  an  examiner,  and  that  decrees  pro  forma  be  made- 
in  the  cases  in  favor  of  the  plaintififs,  in  accordance  with  the 
prayer  of  each  bill,  and  the  case  certified  to  the  Supreme 
Court  in  banc,  the  injunction  granted  to  remain  until  the  entry 
of  the  final  decree. 

The  temporary  injunction  was  dissolved  by  the  Supreme 
Court.  But  in  so  doing  Judge  Thompson  who  delivered  the 
opinion  on  the  first  bill,  said : 

"I  fully  concede  that  the  opinion  of  my  Brother  Strong  at  Nisi 
Pruis,  and  the  law  and  authorities  referred  to  by  him,  establish  very 


PENNS YL  VA N (A.  79 

clearly,  that  the  business  of  running  passenger  cars  on  the  Lord's  day, 
commonly  called  "Sunday,"  to  use  the  language  of  the  Act  of  1794,  is 
a  violation  of  that  act;  and  I  agree  that  it  is  within  its  penalties." 

It  was  held  however  that  the  damage  to  property  was  not  such  as 
to  warrant  the  issuing  of  an  injunction.  On  the  second  bill  a  similar 
opinion  was  rendered  by  Judge  Woodward.     (54  Pa.  401.  1867). 

In  Commonwealth  v.  Teaman  before  the  Court  of  Quarter 
Sessions  a  charge  was  brought  of  disorderly  conduct  in  sehing 
newspapers  on  the  Sabbath.     Tn  rendering  its  decision  the  Court 

said: 

"The  design  of  the  law  is  to  secure  not  only  a  day  of  rest,  but  as 
it  is  termed  in  the  act  of  1705,  a  day  on  which  'the  people  may  devote 
themselves  to  religious  and  pious  exercises.'  Those  who  choose  to 
avail  themselves  of  the  privileges  are  to  be  protected  from  disturbance 

and  molestation  by  others  who  disregard  them The  crying  of 

newspapers  in  the  public  streets  on  Sunday  is  a  breach  of  the  peace. 
As  well  might  the  oysterman  cry  his  oysters,  or  the  charcoal  man 
ring  his  bell.  The  peace  of  Sunday  may  be  disturbed  by  acts  which, 
on  other  days,  cannot  be  complained  of — such  acts  as  interfere  with  the- 
rights  which  the  law  vouchsafes  to  the  people  who  desire  to  conserve 
that  day  as  a  period  of  religious  observance  and  of  rest  from  worldly 
business."    (1  Phil.  460,  1853). 

In  1893  it  was  declared  in  Commonwealth  v.  Matthews  that  "Selling 
Sunday  newspapers  is  a  performance  of  worldly  employment  within 
the  meaning  of  the  act  and  does  not  come  within  the  exceptions  of  the- 
act  as  works  of  necessity."     (152  P.  S.  166,  1893). 

In  Commonwealth  v.  Houston  it  was  held  that  "A  manager,  direc- 
tor and  stockholder  of  a  corporation  which  publishes  a  newspaper  on 
Sunday  may  be  convicted  under  this  act;  and  this  though  he  is  never 
at  his  office  on  Sunday,  nor  doing  any  work  on  that  day."     (C.  C.  395). 

"Carrying  on  the  business  of  selling  milk  in  an  open  store  to  all 
who  may  call  for  it  is  a  worldly  employment,  and  not  within  the  pro- 
viso permitting  the  delivery  of  milk." 

"The  proviso,  in  terms,  places  milk  and  all  the  necessaries  of  Hfe  on 
the  same  footing.  If  you  can  sell  milk  on  Sunday  as  a  worldly  employment 
or  business,  you  can  sell  sugar,  tea,  butter,  bread  and  everv  other  article  of 
food  ordinarily  used  and  necessary  for  human  comfort  and  enjoyment. 

Deliver}^  does  not  in  any  sense  comprehend  a  sale,  and  the  busi- 
ness of  delivering  articles  is  entirely  distinct  from  the  business  of  selling 
them."     (Com.  v.  Martin,  7  Pa.  C.  C.   154,  1889.) 

A  subscription  for  the  erection  of  a  church  is  a  work  of  charity  and 
is  within  the  exception.     (Dale  v.  Knipp,  98  Pa.  389,  1881). 

"It  is  a  violation  of  the  act  to  charge  compulsory  prices  for  ad- 
mission to  a  camp-meeting  on  Sunday."  (Com.  v,  Weidner,  4  C.  0. 
437,  1888). 

In  Splane  v.   Commonwealth  the  Court  of  Common   Pleas  Number  1 


-So  PENNS  YL  VANfA. 

of  Allegheny  County,  held  that  "vSelling  soda  water  a?  a  beverage  on  Sun- 
day in  connection  with  drugs  or  other  goods  is  a  violation  of  the  Act  of 
1794."  "It  was  urged  by  counsel  for  defendant  upon  the  argument  of  this 
case  that  the  proviso  to  the  Act  of  1705,  which  declares  that  'nothing  in  this 
act  shall  be  construed  to  prevent  victualling  houses,  or  other  public  house  or 
place  from  supplying  the  necessary  occasions  of  travelers,  inmates,  lodgers 
or  others,  on  the  first  day  of  the  week,  with  victuals  and  drink  in  modera- 
tion for  refreshment  only,'  would  apply  to  a  druggist,  store-keeper  or  con- 
fectioner, or  other  person  who  furnished  drinks,  such  as  soda  water  or 
lemonade.  ...  It  can  hardly  be  said  with  any  regard  to  the 
significance  of  language  that  a  drug  store  falls  within  the  proviso  as  to  the 
character  of  the  place  where  the  victuals  were  to  be  dressed,  or  that  soda 
water  is  within  the  ordint<ry  meaning  of  the  word  'victuals.'  It  would 
sound  somewhat  strangely  to  hear  one  designate  the  'charging'  of  a  soda 
fountain  and  the  drawing  of  a  glass  of  soda  water  for  use  as  'dressing 
victuals.'  "     (35  P.  Iv.  J.  102,  1887.) 

In  upholding  this  opinion  the  Supreme  Court,  to  which  the  case  was 
carried,  declared  that  "Few  acts  upon  our  statute  books  are  of  more  import- 
ance to  the  welfare  of  the  good  citizens  of  this  Commonwealth  than  the  act 
of  1794.  The  weekly  day  of  rest  is,  from  a  mere  physical  and  political 
standpoint,  of  infinitely  greater  value  than  is  ordinarily  supposed,  since  it 
not  only  affords  a  healthful  relaxation  to  persons  in  every  position  of  life, 
but  throws  a  strong  barrier  in  the  way  of  the  degredation  and  oppression  of 
the  laboring  classes,  who,  of  all  others,  need  this  ever  recurring  day  of  rest 
and  relief  from  weekly  toil.  It  is,  therefore,  neither  harsh  nor  unjust  that 
men  of  capital  should  be  required  to  obey  those  statutes  which  have  been 
wisely  ordained  for  the  protection  of  the  Sabbath."     (35  P.  L.  J.  256,  1888.) 

The  Court  of  Quarter  Session  of  Allegheny  County,  in  Commonwealth 
V.  Burry,  involving  the  sale  of  ice  cream,  cakes,  pies,  lunches,  etc.,  on 
the  Sabbath  day  by  a  baker,  declared  that  "the  business  conducted  by  the 
defendant,  that  is,  the  sale  of  ice  cream,  cakes,  pies,  lunches,  etc.,  is  a 
worldly  employment  prohibited  by  the  Act  of  1794,  and  not  within  the 
■exceptions  to  the  Act.  ...  A  stated  day  of  rest  is  essential  to 
the  'ease  of  creation,'  for  the  recreation  of  man  and  beast.  If  such  a  day 
were  not  enforced  by  law,  the  greed  of  man  would  force  the  utmost  amount 
of  labor  from  all  men  whose  necessit  ^s  subject  them  to  their  will,  as  they 
would  from  the  beast  who  has,  no  Will  to  oppose  them.  It  is  legislation  de- 
signed to  protect  the  weak  against  the  strong,  and,  as  such,  should  have  the 
hearty  support  of  all  men  who  regard  their  own  interest  and  the  cause  of 
humanity.  The  courts  have  always  regarded  it  as  wise  legislation,  which  is 
entitled  to  a  fair  interpretation  and  full   enforcement."     (C.  C.  481,  1888.) 

This  case  was  appealed  to  the  Supreme  Court  and  the  opinion  sustained. 
<1  Mona.  89,  1889.) 

It  is  held  that  the  sale  and  delivery  of  ice — at  least  in  a  great  city  dur- 
ing the  heat  of  summer — is  a  work  of  necessity  within  the  exception  to  the 
Act  of  1794.     (Com.  v.  Linaugh,   13  D.  R.  486.  1894. ) 

In  view  of  the  conditions  and  usages  of  the  present  time,  the  running 
-of  street  cars  in  a  large  city  and  its  suburbs  on  Sunday  is  a  work  of   neces. 


PENNSYLVANIA.  8i 

sity,  and  is   nol  a  violation   of  the   Act   of    1794.     (Com.    v.    Berks  County 
Prison  Warden,  11  D.  R.  45,  1901.) 

"Repairing  a  railroad  track  on  Sunday  is  a  work  of  necessity  and  char- 
ity. (Com.  V.  Fields,  4  C.  C.  434.)  "So  is  the  sale  of  railroad  tickets  for 
the  purpose  of  attending  a  religious  campnieeting."     (Com.  v.  Fulton,  Ibid, 

429.) 

"For  a  licensed  inn-keeper  to  sell  cigars  on  Sunday  either  to  his 
guests  or  strangers"  is  a  violation  of  the  act.  (Baker  v.  Com.  5  C.  C. 
10). 

It  is  a  violation  of  the  law  "to  pump  water  out  of  oil  wells  on 
Sunday  as  a  matter  of  convenience  and  profit."  (Com.  v.  Funk,  9  C. 
C.  277). 

"Operating  a  steamboat  on  Sunday  for  the  carrying  of  excursion- 
ists, is  worldly  employment  which  is  prohibited."  (Com.  v.  Rees,  10 
C.  C.  545). 

The  value  of  the  Sabbath  law  was  maintained  by  the 
Supreme  Court,  in  the  case  of  Friedebom  v.  Commonweadlth  in 
:the  following  terms: 

"There  are  but  few  of  our  statutes  which  in  principle  are  of  more 
importance  than  the  act  of  the  22d  of  April,  1794,  commonly  called  the 
"Sunday  act,"  in  that  it  recognizes  the  first  day  of  the  week  as  a  Sab- 
bath of  rest  for  the  well  disposed  and  religious  people  of  our  Common- 
wealth, and  we  can  entertain  but  little  respect  for  those  who  wilfully 
and  persistently  violate  its  prescriptions.  Against  all  such  its  penalty 
should  be  enforced  until  they  are  taught  that  a  respect  for  its  provis- 
ions may  at  least  be  profitable  from  a  pecuniary  point  of  view.  The  fine 
imposed  is  but  light,  far  too  light,  indeed,  to  prevent  the  violation  of 
the  statute  by  great  corporations  and  heavy  capitalists,  who  regard 
their  own  profit  rather  than  the  public  welfare."     (113  Pa.  242,  1886). 

In  this  case  PViedebom  was  charged  with  selling  to  six  dif- 
ferent persons,  quantities  of  cigars,  tobacco,  cider,  spruce  beer 
and  candy,  and  had  been  fined  by  a  justice  of  the  peace  for  each 
person  to  whom  he  sold.  The  Supreme  Court  held  that  there 
can  be  but  one  violation  of  the  law  by  the  same  person  in  one 
day  and  consequently  but  one  fine  can  be  imposed. 

In  the  Supreme  Court,  during  the  January  term  of  (1891  the 
case  of  Commonwealth  v.  Waldman  was  heard.  (25  C.  89). 
Waldman  was  charged  with  violating  the  Sabbath  law  of  the 
-State  by  keeping  his  barber  shop  open  and  in  full  operation  on 
the  first  day  of  the  week.  It  was  maintained  that  this  was  done 
for  the  accommodation  of  persons  who  cannot  get  shaved  upon 
Saturday ;  and  persons  whose  beards  are  so  strong  that  they  are 
shaved  every  day  in  order  to  be  cleanly.  Judge  Pennypacker  in 
his  opinion  said  of  the  law  of  1794  : 


82  PENNSYLVANIA. 

"It  was  enacted  immediately  after  the  visitation  of  Philadelphia  br 
the  yellow  fever  in  1793,  at  a  time  when  that  scourge  was  widely  re- 
garded as  a  punishment  inflicted  upon  the  community  because  of  in- 
creasing levity  and  worldliness,  and  its  object  plainly  was  by  the  im- 
position of  penalties  to  compel  the  observance  of  Sunday It  is^ 

quite  clear  that  he  (the  defendant)  was  influenced  by  the  usual  motive? 
which  govern  men  when  following  their  worldly  vocations,  the  se- 
curing of  trade,  the  gathering  in  of  compensation,  and  the  laying  away 
of  profit.  If  the  position  so  strenuously  and  ably  urged  by 
counsel  for  the  defendant  were  sound,  it  would  result  in  the- 
entire  abrogation  of  the  act  of  1794,  because  the  same  process 
of  reasoning  would  throw  open  substantially  all  the  avenues  of 
business  life.  In  a  large  community  such  as  this,  there  can  always  be- 
found  some  hungry  to  whom  the  baker  may  supply  bread,  some  needy 
to  whom  the  tailor  may  furnish  clothing,  and  some  wanderer  in  want 
of  transportation.  And,  to  extend  the  thought  further,  the  baker  can- 
not bake  without  coal,  and  the  railway  cannot  carry  without  iron.  If 
there  are  persons  so  closely  tied  to  their  occupations  during  the  week 
that  they  cannot  find  sufficient  time  to  get  shaved  except  upon  Sun- 
days, the  same  want  of  time  will  prevent  them  from  seeking  the  shoe- 
maker, the  plumber,  and  the  forgeman  upon  the  ordinary  days  of  la- 
bor." 

The  numerous  cases  here  cited  will  give  but  an  inadequate- 
idea  of  the  controversy  that  has  been  and  still  is  carried  on  in 
Pennsylvania  over  the  Sabbath  law.  Repeated  efforts  have  been 
made  to  secure  an  opinion  by  the  Supreme  Court  against  its 
constitutionality.  These  have  all  failed.  The  law  has  been  uni- 
formly upheld,  sometimes  on  one  ground  and  sometimes  on  an- 
other. Frequently  the  Divine  authority  back  of  the  law  has  been 
set  forth.  Still  more  frequently  has  the  law  been  sustained  be- 
cause Christianity  is  part  of  the  common  law. 

In  recent  years  enemies  of  the  law  seem  to  have  abandoned 
the  attack  on  the  line  of  its  constitutionality  and  have  turned 
their  attention  to  the  legislature,  hoping  that  amendments  might 
be  secured  that  would  practically  annul  the  better  part  of  the  law. 
The  most  recent  of  these  efforts  proposed  the  following : 

"Be  it  enacted  etc.  hereafter  it  shall  be  lawful  to  sell  Drugs,  Medi- 
cines, Soda  and  Mineral  Waters,  and  other  harmless  and  non-intoxi- 
cating drinks.  Bread,  Oysters,  Cakes,  Pastry,  Ice  Cream,  Candy,  Milk, 
Fruit,  Cigars,  and  Tobacco  and  to  prepare,  print  and  sell  Newspapers 
on  the  first  day  of  the  week,  commonly  called  Sunday." 

The  Christian  citizens  of  the  State,  however,  made  their 
voices  heard  in  opposition'  to  this  proposal,  as  they  had  done  to- 
like  proposals  in  former  years,  and  the  bill  was  killed  in  the  Com- 


SOUTH  DAKOTA.  83 

mittee  to  which  it  had  been  referred.  With  the  exception  of  the 
inadequate  penalty  of  four  dollars  except  in  Allegheny  County 
where  it  is  twenty-five,  this  law  ranks  as  one  of  the  best,  and 
some  of  the  judicial  opinions  arc  among  the  most  profound. 

SOUTH  DAKOTA  (1903). 

Chapter  4  of  the  Penal  Code  of  this  State  is  entitled  "Crimes 
against  Religion  and  Conscience."  The  sections  relating  to  "Sab- 
bath Breaking"  are  as  follows : 

"39.  The  first  day  of  the  week  being  by  general  consent  set  apart 
for  rest  and  religious  uses,  the  law  forbids  to  be  done  on  that  day  cer- 
tain acts  deemed  useless  and  serious  interruptions  of  the  repose  and 
religious  liberty  of  the  community. 

"40.     Any  violation  of  this  prohibition  is  Sabbath-breaking. 

"41.  Under  the  term  'day'  as  employed  in  the  phrase  'first  day 
of  the  week,'  in  the  seven  sections  following,  is  included  all  the  timd' 
from  midnight  to  midnight. 

"42.  The  following  are  the  acts  forbidden  to  be  done  on  the  first 
day  of  the  week,  the  doing  of  any  of  which  is  Sabbath-breaking: 

"1.     Servible  labor. 

"2.     Public  sports. 

"3.     Trades,  manufacturers  and  mechanical  employments. 

"4.    Public  traffic. 

"5.     Serving  process. 

"43.  All  manner  of  servile  labor  on  the  first  day  of  the  week  is 
prohibited,  excepting  works  of  necessity  and  charity. 

"44.  It  is  a  sufiicient  defense  in  proceedings  for  servile  labor  on  the 
first  day  of  the  week,  to  show  that  the  accused  uniformily  keps  an- 
other day  of  the  week  as  holy  time,  and  does  not  labor  upon  that  day, 
and  that  the  labor  complained  of  was  done  in  such  manner  as  not  to 
interrupt  or  disturb  other  persons  in  observing  the  first  day  of  the 
week  as  holy  time. 

"45.  All  shooting,  sporting,  horse-racing,  gaming  or  other  public 
sports,  upon  the  first  day  of  the  week,  are  prohibited. 

"46.  All  trades,  manufacturers  and  mechanical  employments,  upon 
the  first  day  of  the  week,  are  prohibited. 

"47.  All  manner  of  public  selling,  or  offering,  or  exposing  for  sale 
publicly,  of  any  commodities  upon  the  first  day  of  the  week  is  prohib- 
ited, except  that  meats,  milk  and  fish  may  be  sold  at  any  time  before 
nine  o'clock  in  the  morning,  and  except  that  food  may  be  sold  to  be 
eaten  upon  the  premises  where  sold,  and  drugs  and  medicines  and  surgi- 
cal appliances  may  be  sold  at  any  time  of  the  day. 

"48.  All  service  of  legal  process  of  any  description,  upon  the  first 
day  of  the  week,  is  prohibited,  except  in  cases  of  breach  of  the  peace. 


84  TENNESSEE. 

or  when  sued  out  for  the  apprehension  of  a  person  charged  with  crime, 
or  except  where  such  service  ^all  be  specially  authorized  by  law. 

"49.  Every  person  guilty  of  Sabbath  breaking  is  punishable  by  a 
fine  of  one  dollar  for  each  offense. 

"50.  The  fines  prescribed  in  this  chapter  for  profane  swearing  and 
for  Sabbath  brealdng  may  be  collected  in  the  manner  prescribed  by 
law,  for  collection  of  debts;  but  no  property  shall  be  exempt  from  exe- 
cution which  has  been  taken  to  satisfy  any  such  fines  and  costs. 

"51.  Every  inn-keeper,  or  person  licensed  to  sell  liquors,  who  sells 
or  gives  away  any  strong  or  spirituous  liquors  or  wine,  upon  Sunday, 
is  guilty  of  a  misdemeanor. 

"53.  Every  master  or  other  person  engaged  in  navigating  a  steam- 
boat, who  allows  any  liquors  mentioned  in  the  last  section  to  be  sold 
on  his  boat  on  Sunday,  while  stopping  at  any  wharf,  landing,  city  or 
town  in  this  State,  is  guilty  of  a  misdemeanor." 

The  Supreme  Court  of  the  State  of  South  Dakota  has  declared  that 
"Payments  fully  made  for  Sunday  labor  cannot  be  recovered  on  the 
ground  of  the  invalidity  of  a  contract  for  Sunday  labor.  The  courts  will 
neither  assist  in  enforcing  such  contract,  nor  in  recovering  what  has 
been  paid  under  it,  but  will  leave  the  parties  where  they  have  put  them- 
selves, they  being  in  pari  delictu."     (5  S.  D.   299,  1894). 

It  was  held  that  "Where  parties  meet  on  Sunday,  and  talk  over  and 
substantially  agree  upon  the  terms  of  a  purchase  and  sale  of  a  pair  of 
horses,  during  which  representations  are  made  by  the  seller  which 
would  constitute  a  warranty  of  soundness,  and  then  agree  that  they 
should  meet  again  on  the  next  day,  when  secured  notes  should  be  given 
for  the  purchase  price,  and  the  horses  then  transferred  to  the  purchas- 
er, which  was  done,  the  warranty  took  legal  effect,  as  such,  only  when 
the  trade  was  completed  and  the  property  in  the  horses  passed  to  the 
purchaser,  and  was  not  void,  as  a  Sunday  contract."  (6  S.  D.  221, 
1894). 

The  statute  of  South  Dakota  is  weak  principally  in  the 
ridiculously  low  fine  of  one  dollar. 

TENNESSEE.    (1896.) 

Chapter  11  of  Title  12  of  the  Code  of  Tennessee  is  entitled 
"Of  Violating  the  Sabbath,  Profanity."  The  following  sections 
relate  to  the  Sabbath  : 

"3029.  If  any  merchant,  artificer,  tradesman,  farmer,  or  other  per- 
son shall  be  guilty  of  doing  or  exercising  any  of  the  common  avoca- 
tions of  life,  or  of  causing  or  permitting  the  same  to  be  done  by  his 
children  or  servants,  acts  of  real  necessity  or  charity  excepted,  on  Sun- 
day, he  shall,  on  due  conviciton  thereof  before  any  justice  of  the  peace 
of  the  county,  forfeit  and  pay  three  dollars,  one  half  to  the  person  who 
will  sue  for  the  same,  the  other  half  for  the  use  of  the  county. 


TENNESSEE'.  85 

"3030.  It  shall  be  a  misdemeanor  for  any  person  to  carry  on  the 
business  of  barbering  on  Sunday  in  Tennessee;  and  any  person  found 
guilty  of  violating  this  section  shall  be  fined  not  less  than  twenty-five 
dollars  nor  more  than  fifty  dollars,  or  imprisoned  in  the  county  jail 
not  less  than  fifteen  nor  more  than  thirty  days,  or  both,  in  the  discre- 
tion of  the  court. 

"3031.  Any  person  who  shall  hunt,  fish  or  play  at  any  game  of 
sport,  or  be  drunk  on  Sunday,  as  aforesaid,  shall  be  subject  to  the  same 
proceedings  and  liable  to  the  same  penalties  as  those  who  work  on  the 
Sabbath."  '  (pp.  684,  685). 

Section  2013  forbids  the  selling  of  any  article  of  traffic  on  the  Sab- 
bath within  view  of  any  worshipping  assembly  in  such  manner  as  to 
disturb  such  assembly. 

Section  5671  forbids  the  retail  of  spirituous  liquors  on  the  Sab- 
bath. 

Civil  processes  may  be  issued  on  the  Sabbath  if  the  defendant  is 
removing  or  is  about  to  remove  himself  or  property  beyond  the  juris- 
diction of  the  court  of  justice  applied  to. 

In  1883.  in  the  case  of  Mayor,  etc.,  of  Nashville  v.  Linch, 
the  constitntionalitv  of  Sabbath  laws  was  considered.  Judge 
Cooke  delivered  the  opinion  of  the  Court  affirming  the  right  of 
the  city  to  pass  such  ordinances,  but  Justice  Freeman  supple- 
mented this  with  an  opinion  in  which  he  said : 

"Far  back  in  the  life  and  law  of  the  people  from  whom  we  derive 
our  descent,  whose  usages  and  traditions  have  been  handed  down  to  us 
as  our  own,  we  have  everywhere,  for  a  thousand  years  and  more,  a 
recognition  of  the  Christian  Sunday  as  one  of  the  institutions  as  char- 
acteristic of  our  social  organism  as  is  the  marriage  institution,  and  that 
to  a  single  wife.  That  the  peculiar  view  of  the  sanctity  of  the  day 
characterizing  the  opinions  of  many  have  been  carried  to  extreme 
lengths,  and  embodied  a  spirit  of  fanatical  zeal  for  the  day  simply, 
may  be  conceded."  "Be  this  as  it  may,  the  day  has  been  observed  in 
some  form,  and  kept  up  among  us  and  the  people  from  whom  we  derive 
our  institutions,  for  more  than  a  thousand  years.  Its  ordinary  uses  are 
well  known,  and  these  follow  as  implications,  and  become  part  of  the 
institution  itself,  subject  to  such  civil  regulation  and  modification  as 
may  be  deemed  best  conducive  to  promote  the  ends  of  a  society  in 
which  such  an  institution  exists,  and  is  to  be  perpetuated. 

"The  due  regulation  of  such  an  institution,  with  such  traditions 
and  usages  as  have  for  so  long  accreted  around  it,  would  naturally  be 
such  as  tended  to  aid  the  ends  supposed  to  be  desirable,  and  advanced 
by  such  observances  as  had  grown  up  among  us,  or  had  been  trans- 
mitted from  other  days  to  us. 

"But  there  is  another  view  of  this  question  which  I  wish  to  pre- 
sent. It  is  well  known,  as  any  other  universally  seen  fact,  that  on 
Sunday  our  people  in  the  main  habitually  attend  some  one  of  the  many 


S6  TENNESSEE. 

Christian  churches  in  country  or  town,  which  make  up  another  well 
known  feature  of  the  great  civilization  of  which  we  are  a  part.  That 
in  these  churches  there  is  carried  on  in  some  one  or  other  of  forms  rec- 
ognized by  these  various  churches  public  services,  in  which  the  leading 

elements  are  worship  of  the  one  God  of  Christendom Who  can 

estimate  lightly  (as  we  sometimes  hear  all  this  spoken  of)  the  universal 
influence  of  all  this  moral  and  religious  teaching  upon  the  life  of  our 

people? That  a  sound  morality  is  essential  to  the  higher  life  of 

every  community  is  conceded  by  us.  That  to  conserve  and  strengthen 
such  morality  is  as  a  matter  of  public  policy  one  of  the  most,  if  not  the 
supremely   desirable   end   of  social   regulation,   would   not  be   hard   to 

demonstrate It  being  clear  that  the  moral  culture  of  our  people 

as  a  mass  is  almost  entirely  derived,  either  directly  or  indirectly  from 
the  influence  brought  to  bear  on  the  public  conscience,  through  the 
agency  of  the  religious  institutions  for  worship  and  teaching,  which  do 
their  work  on  Sunday,  it  follows  that  any  regulation  tending  to  in- 
crease the  efficiency  of  these  agencies  is  one  of  vital  public  concern, 
and  demanded  by  the  best  interest  of  society.  If  all  the  occupations  of 
a  great  city,  or  even  a  village,  were  permitted  to  be  carried  on  as  usual 
on  this  day  consecrated  to  worship  and  moral  teaching,  then  it  needs 
no  argument  to  show  that  such  interruptions  to  such  exercises  would 
continually  occur,  prevention  of  attendance  on  the  part  of  thous- 
ands who  would  otherwise  attend,  that  this  mighty  source  of  moral  in- 
fluence would  be  weakened  and  greatly  enfeebled  in  its  beneficent  work. 
No  community  can  afford  to  permit  any  burden  on  the  religious  in- 
struction and  moral  life  of  its  people  without  an  injury  and  deteriora- 
tion that  will  tend  to  increase  crime  and  give  vice  dominance  unless  it 
will  follow  the  path  that  leads  toward  destruction  to   all  the  highest 

and  most  sacred  interests  for  which  society  is  organized I     am 

prepared  to  say  all  private  gain  must  and  should  be  subordinated  to  the 
higher  moral  ends  in  which  is  enshrined  so  much  of  the  best  interests 
of  the  great  social  organization  which  serves  the  end  of  giving  protec- 
tion to  life,  liberty,  property  and  reputation  of  all."     (12  Lea  499). 

Again  the  constitutionality  of  the  law  was  put  to  the  test  in 
189Q  in  the  case  of  Breyer  v.  the  State.  In  this  case  the  Supreme 
Court  said : 

"It  is  very  evident  that  the  judicial  sanction  of  Sunday  laws, 
though  they  have  been  attacked  on  many  points,  has  been  very  nearly 
unanimous.  That  such  laws  are  not  repugnant  to  fundamental  consti- 
tutional principles  is  now  so  universally  established  in  every  jurisdic- 
tion in  which  such  laws  have  been  attacked,  that  it  would  seem  to  be 
settled  as  fully  as  judicial  decisions  can  settle  anything.  (18  Pick. 
103). 

An  effort  to  obtain  a  deliverance  against  the  constitutionality  of 
the  law  requiring  barbers  to  close  their  shops  on  Sabbath  was  unsuc- 
cessful.    (102  Tenn.  103). 

This  court  values  the  moral  influence  of  the  Sabbath  upon  the  pub- 


UTAH.  87 

lie.  In  Gunter  et.  al.  v.  the  State  it  was  declared  that  "Flagrant  vio- 
lations of  the  Sabbath  day  do  tend  to  debauch  the  public  morals."  (1 
Lea,  129,  1878). 

Whether  the  law  applies  to  those  who  keep  another  day  as  the 
Sabbath  was  decided  affirmatively  in  Parker  v.  the  State.  The  Court 
said: 

"The  statute  makes  it  unlawful  for  any  one  of  the  enumerated 
classes  to  follow  his  ordinary  secular  avocation  on  the  Sabbath  day  be- 
cause it  is  immoral  and  is  of  pernicious  effect,  and  though  it  may  be 
conceded  a  single  offense  may  be  liable  only  to  the  penalty  prescribed 
l)y  the  statute,  yet  a  succession  of  such  acts  becomes  a  nuisance  and  is 
indictable."  "The  defendant  offered  to  prove  that  he  belonged  to  a 
'Christian  sect'  who  keeps  the  seventh,  instead  of  the  first  day  of  the 
week,  as  Sunday.  A  general  prohibition  against  doing  worldly  business 
on  the  Lord's  day  extends  to  persons  who  conscientiously  observe  the 
seventh  day  of  the  week  as  the  Christian  Sabbath."     (16  Lea.  476). 

It  is  illegal  to  deliver  on  Sabbath  goods  sold  on  Saturday. 
"If  we  should  hold  a  contrary  view,  any  merchant  who  was 
pressed  for  time,  or  with  a  rush  of  business,  might  separate 
and  mark  purchases  on  the  night  of  Saturday,  and  delay  delivery  until 
the  next  day,  and  thus  spend  the  Sabbatli  in  winding  up  the  business 
of  the  week  or  day  preceding.     (19  Pick  726). 

The  publication  of  a  city  ordinance  in  a  Sunday  paper  is  valid. 
"It  is  the  purpose  of  the  publication  of  an  ordinance  to  bring  it  to  the 
attention  of  the  public,  and  it  appears  that  the  publication  in  a  Sunday 
newspaper  is  the  most  effective  notice  that  could  be  given  in  the  City 
of  Knoxville"  (Knoxville  v.  Knoxville  Water  Com.  107  Tenn.  647) . 

There  has  been  some  hesitancy  by  the  Supreme  Court,  as  to  the 
legality  of  contracts  made  on  the  Sabbath.  In  Amis  v.  Kyle,  it  was  held 
that  a  note  given  on  Sabbath  is  valid,  and  that  a  contract  to  deliver 
horses  on  a  certain  date  and  that  date  falling  on  Sabbath  might  be  law- 
fully fulfilled  on  that  day,  the  giving  of  notes  and  the  delivery  of  horses 
not  being  the  ordinary  callings  of  the  parties.     (2  Yerger  31,  1820). 

At  the  time  this  opinion  was  rendered  the  law  forbade  labor  in 
one's  ordinary  calling  only. 

At  a  later  date  however,  doubt  was  thrown  on  the  correctness 
of  this  opinion,  the  court  merely  declaring  that  if  such  contracts  are 
to  be  held  void  they  must  be  technically  completed  on  the  Lord's  day, 
and  reserving  its  opinion  whether  for  that  reason  they  are  void.  (6 
Lea.  288,  1880). 

The  law  of  this  State  would  be  improved  by  raising  the 
penalt}'  for  violating-  section  3029  from  three  to  twenty-iive  dol- 
lars. 

UTAH. 

The  Penel  Code  of  Utah  contains  the  following  sections  on 


88  UTAH. 

Sabbath  observance  in  a  chapter  entitled  "Of  Crimes  and 
Offences  against  good  morals." 

"4514.  Every  person  who,  on  Sunday,  gets  up,  exhibits,  opens,  or 
maintains,  or  aids  in  getting  up,  exhibiting,  opening,  or  maintaining 
any  bull,  bear,  cock,  or  prize  fight,  horse  race,  circus,  gambling  house, 
or  saloon,  or  any  barbarous  and  noisy  amusement,  or  who  keeps,  con- 
ducts, or  exhibits  any  theater,  melodeon,  dance,  cellar,  or  other  place 
of  musical,  theatrical,  or  operatic  performances,  spectacle,  or  represen- 
tation where  any  wines,  liquors,  or  intoxicating  drinks  are  bought, 
sold,  used,  drank,  or  given  away,  or  who  purchases  any  ticket  of  ad- 
mission, or  directly  or  indirectly  pays  any  admission  fee  to  or  for  the 
purpose  of  witnessing  or  attending  any  such  place,  amusement,  spec- 
tacle, performance,  or  representation,  is  guilty  of  a  misdemeanor, 

"4515.  Every  person  who  keeps  open  on  Sunday  any  store,  work- 
shop, bar,  saloon,  banking  house,  or  other  place  of  business,  for  the 
purpose  of  transacting  business  therein,  is  punishable  by  fine  not  less 
than  five  nor  more  than  one  hundred  dollars. 

"4516.  The  provisions  of  the  preceding  section  do  not  apply  to 
persons  who,  on  Sunday,  keep  open  hotels,  boarding  houses,  baths, 
restaurants,  taverns,  livery  stables,  or  retail  drug  stores  for  the  legiti- 
mate business  of  each,  or  such  manufacturing  establishments  as  are 
usualy  kept  in  continued  operation. 

"4519.  Every  person  who  performs  any  unnecessary  labor,  or  does 
any  unnecessary  business  on  Sunday,  is  guilty  of  a  misdemeanor,  and 
shall  be  fined  in  any  sum  not  exceeding  twenty-five  dollars. 

The  constitutionality  of  the  Sabbath  law  of  Utah  was 
affirmed  by  the  Supreme  Court  in  1902  in  State  v.  Sopher.  The 
Court  declared  that  "General  laws  prohibiting  the  transaction  of 
business  on  the  first  day  of  the  week  are  so  uniformly  upheld  by 
the  Courts  as  a  legitimate  exercise  of  the  police  power  of  the 
State  that  it  is  unnecessary  to  cite  or  discuss  authority  in  support 
thereof.  It  is  only  upon  special  statutes,  or  special  exceptions 
to  general  so-called  Sunday  laws,  that  the  constitutionality  of 
sucii  enactment  is  seriously  called  in  question." 

In  this  case  Sopher  was  charged  with  keeping  open  his  bar- 
ber shop  on  the  Lord's  day,  and  the  plea  set  up  was  that  the  law 
prohibiting  the  keeping  open  of  a  barber  shop  is  unconstitutional. 

While  in  a  few  States  such  special  laws  are  held  unconstitu- 
tional tl.iey  are  generally  sustained,  and  the  Court  sustained  the 
Utah  law.     (25  Utah.  318). 


CHAPTER   IV. 

LEGISLATION  WEAKENED  BY  NUMEROUS  EXCEP- 
TIONS. 

In  this  chapter  will  be  considered  those  States  whose  Sab- 
bath laws,  after  making  general  prohibitions  of  labor,  business- 
and  pleasure  seeking  on  the  first  day  of  the  week,  take  away 
much  of  the  efficiency  of  the  prohibitory  clauses  by  the  introduc- 
tion of  needless  exceptions. 

ALABAMA.        (1896.) 

The  sections  of  the  law  of  this  State  relating  to  the  Sabbath' 
are  the  following: 

"5542.  Any  person,  who  compels  his  child,  apprentice,  or  servant 
to  perform  any  labor  on  Sunday,  except  the  customary  domestic  duties 
of  daily  necessity  or  comfort,  or  works  of  charity;  or  who  engages 
In  shooting,  hunting,  gaming,  card-playing  or  racing  on  that  day,  must, 
for  the  first  offense,  be  fined  not  less  than  ten,  nor  more  than  twenty 
dollars,  and,  for  the  second,  or  any  subsequent  offense,  must  be  fined 
not  less  than  twenty,  nor  more  than  one  hundred  dollars,  and  may  also 
be  imprisoned  in  the  county  jail,  or  sentenced  to  hard  labor  for  the 
county,  for  not  more  than  three  months;  but  the  provisions  of  this  sec- 
tion do  not  apply  to  the  running  of  railroads,  stages,  or  steamboats, 
or  other  vessels  navigating  the  waters  of  this  State,  or  any  manufac- 
turing establishment  which  requires  to  be  kept  in  continual  operation. 

"5543.  Any  person,  who  opens,  or  causes  to  be  opened,  for  the 
purpose  of  selling  or  trading,  any  public  market  house  or  place  on  Sun- 
day, or  opens,  or  causes  to  be  opened  any  stall  or  shop  therein,  or 
connected  therewith,  or  brings  anything  for  sale  or  barter  to  such 
market  or  place,  or  offers  the  same  for  sale  therein  on  that  day,  or 
buys  or  sells  therein  on  that  day  (including  live  stock  or  cattle),  must^ 
on  conviction,  be  punished  as  prescribed  in    the    preceding    section^ 


90  ALABAMA. 

Any  place  where  people  assemble  for  the  purchase  and  sale  of  goods 
■wares  and  merchandise,  provisions,  cattle,  or  other  articles,  is  a  mar- 
ket house  or  place  within  the  meaning  of  this  section."     (Vol.  2,  p.  84.) 

"1749.  All  contracts  made  on  Sunday,  unless  for  the  advancement 
of  religion,  or  in  the  execution,  or  for  the  performance  of  some  work 
of  charity,  or  in  the  case  of  necessity,  are  void." 

Section  1759  declares  Sunday  to  be  a  legal  holiday  and  paper  fall- 
ing due  on  that  day  is  to  be  held  as  due  on  the  next  succeeding  busi- 
ness day. 

Section  2943  declares  that  "attachments  may  issue  and  be  exe- 
cuted on  Sunday,  if  the  plaintiff,  his  agent,  or  attorney,  in  addition  to 
the  oath  prescribed  for  the  issue  of  such  process,  make  affidavit  that 
the  defendant  is  absconding,  or  is  about  to  abscond,  or  is  about  to  re- 
move his  property  from  the  State,  and  give  bond  required  in  this  arti- 
cle." 

The  constittitionality  of  a  municipal  ordinance  of  Mobile, 
entitled,  "An  act  to  reg-ulate  the  observance  of  the  Christian  Sab- 
bath day,"  was  upheld  in  the  case  of  Frolickstein  v.  Mayor  of 
Mobile,  in  1867.  Frolickstein  was  a  Jew  and  kept  a  store.  He 
sold  goods  on  the  first  day  of  the  week  for  which  he  was  indicted. 
In  his  defense  the  act  charged  was  admitted,  but  the  plea  was  ad- 
vanced, that  being  a  Jew, and  believing  in  the  Seventh  day  of 
the  week  as  the  Sabbath,  he  also  believed  that  by  the  law  of 
Moses  he  was  required  to  work  the  other  six.  A  law  forbidding 
this,  it  was  contended,  violates  that  provision  of  the  State  Con- 
stitution which  declares  that  no  person  shall,  "upon  any  pretense, 
whatever,  be  hurt,  molested,  or  restrained,  in  his  religiotts  senti- 
ments or  persuasions." 

"The  law  does  not  hurt,  molest,  or  restrain  the  appellant,  in  the 
entertainment  or  expression  of  what  he  regards  as  a  religious  senti- 
ment or  persuasion.  It  simply  prohibits  the  performance  of  an  act, 
w^hich  he  supposes  to  be  required  by  a  religious  duty.  It  cannot  be 
that  the  Constitution  designed  to  exclude  from  the  prohibitory  power 
Df  legislation  every  act,  which  a  sentiment  or  persuasion,  regarded  by 
any  one  as  of  a  religious  character,  may  dictate.  Such  a  doctrine 
would  lead  to  the  constrained  toleration  of  crime,  equally  abhorrent  to 

the  Jew  and  the  Christian It  would  be  subversive  of  good  gov- 

srnment  to  subordinate  the  power  of  restraining  acts  prejudicial  to 
the  public  welfare,  and  productive  of  social  injury,  to  the  convictions 
of  each  individual  as  to  the  acts  which  religious  sentiment  may  de- 
mand  The  legally  constrained  abstinence  from  certain  worldly 

■employments  on  the  first  day  of  the  week  cannot  be  justified  upon  the 
ground,  that  such  abstinence  is  enjoined  by  the  Christian  religion. 
"The  legislature  is  under  constitutional  restrictions  against  compelling 


ALABAMA.  91 

the  observance  of  a  Christian,  or  Jewish,  or  any  other  religious  insti- 
tution because  it  is  such.  But  the  legislature  is  not  prohibited  from 
making  municipal  regulations,  because  they  have  the  sanction  also  of 
a  religious  society.  The  legislation  on  the  subject  of  abstaining  from 
worldly  employments  on  the  first  day  of  the  week  is  referred  to  the 
police  power  of  the  legislature.  It  has  its  sanction  in  the  teaching  of 
experience,  that  the  general  welfare  and  the  good  of  society  require  a 
suspension  of  labor  and  business  for  one  day  in  seven,  and  that  that 
day  should  be  one  of  uniform  observance.  The  exercise  of  the  power 
to  enforce  this  theory  of  public  good  would  not  infringe  the  constitu- 
tion, whether  the  designated  day  should  be  the  Christian  or  the  Jew- 
ish Sabbath." 

As  to  the  contention  that  the  divine  law  as  understood  by  the  Jew, 
required  him  to  work  six  days  in  the  week,  the  Court  said:  'However 
much  we  may  respect  the  conscientiousness  and  religious  devotion  of 
the  appellant,  we  cannot  regard  the  rule  which  he  prescrit)es  for  him- 
self, otherwise  than  as  an  industrial  regulation,  which  is  not  required 
by  a  sentiment  in  fact  religious,  although  so  conscientiously  regarded 
by  him."     (40  Ala.  725.) 

In  1842,  in  the  case  of  Cotton  v.  Huey  &  Company,  the  Su- 
preme Court  declared  with  reference  to  the  law  as  follows : 

"The  obvious  design  of  the  Legislature  was  to  prevent  the  spread 
of  vice  and  immorality  by  the  desecration  of  the  first  day  of  the  week 
to  common  secular  purposes,  unless  justified  by  the  necessity  of  the 
case.  In  addition  we  are  clearly  of  opinion  that  the  service  of  an  at- 
tachment is  within  the  letter  of  the  prohibition."     (4  Ala.  56.) 

The  following  year  in  the  case  of  O'Donnell  et  al  v.  Sweeney  this 
Court  said:  "It  is  evidently  to  promote  morality  and  advance  the  in- 
terests of  religion  by  prcihibiting  all  persons  from  engaging  in  their 
common  and  ordinary  avocations  of  business,  or  employment,  on  Sun- 
day, unless  impelled  by  necessity,  or  engaged  in  acts  of  charity." 
<5  Ala.,  467). 

In  1S50,  in  the  case  of  Hooper  v.  Edwards,  involving-  the  case 
of  a  debtor  leaving  the  State  on  the  Sabbath  to  avoid  paying-  his 
debts,  the  court  held  that  a  settlement  made  with  him  by  the 
creditor,  who  followed  and  overtook  him.  is  valid  though  made 
on  the  Sabbath.     The  Court  said: 

•'This  act  was  passed  to  prevent  vice  and  immorality,  and  while 
we  must  give  it  such  construction  as  will  carry  out  the  intention 
of  the  Legislature  in  its  enactment,  and  prevent  the  desecration  of  the 
first  day  of  the  week  to  common  secular  business,  we  must  not  on  the 
other  hand  so  construe  it,  as  to  make  it  a  shield  and  protection  to 
those,  who,  under  cover  of  it,  would  remove  their  property  out  of  the 
State,  or  place  it  beyond  the  reach  of  their  creditors."     (IS  Ala.  280.) 

In  1897  it  was  declared  by  this  Court  that  "Since  the  law  recog- 


92  KENTUCKY. 

nizes  an  exception  in  favor  of  works  of  necessity  or  charity,  contracts, 
expressed  or  implied,  for  the  performance  of  works  of  charity  on  the 
first  day  of  the  week,  or  in  cases  of  necessity  are  not  void  but  enforc- 
able."     (Sloss  Iron  and  Steel  Co.  v.  Harvey.  116  Ala.  656.) 

In  the  same  year  it  was  decided  that  "any  selling  on  Sunday  ex- 
cept for  the  advancement  of  religion,  or  in  the  execution  or  for  the 
performance  of  some  work  of  charity,  or  in  case  of  necessity,  is,  under 
the  statute,  void.  A  sale  with  closed  doors  would  be  as  invalid  as  a 
sale  with  open  doors."  (Wadsworth  v.  Dunnan,  117  Ala.  661.)  A  bond 
signed  by  the  makers  on  Sabbath  but  not  delivered  till  a  week-day  is 
valid.     (117  Ala.  575.) 

A  member  of  a  Barbers'  Association  caused  the  arrest  of  other 
members  for  violating  the  Sabbath  law.  The  association  resolved  to 
expel  him  on  the  ground  that  he  was  guilty  of  conduct  tending  to  the 
Injury  of  his  fellows.  He  took  the  matter  into  court  and  the  Supreme 
Court  declared  that  he  could  not  be  expelled  in  this  ground.  (Man- 
ning V.  Klein,  1  K.  &  A.  210.) 

Were  it  not  for  the  exceptions  attached  to  Section  5542  this 
would  be  an  admirable  law.  The  opinions  of  the  Supreme  Court 
give  the  statute  strong  support. 

KENTUCKY.     (1903.) 

The  following  Sections  of  the  law  of  Kentucky  relate  to  the 
Sabbath : 

"1303.  Any  person  who  shall,  on  Sunday,  keep  open  a  bar-room  or 
other  place  for  the  sale  of  spirituous,  vinous  or  malt  liquors,  or  who 
shall  sell  or  otherwise  dispose  of  such  liquors,  or  any  of  them,  on  Sun- 
day, shall  be  fined  not  less  than  ten  nor  more  than  fifty  dollars  for  each 
offense,     (p.  578.) 

"1321.  No  work  or  business  shall  be  done  on  the  Sabbath  day, 
except  the  ordinary  household  offices,  or  other  work  of  necessity  or 
charity,  or  work  required  in  the  maintenance  or  operation  of  a  ferry, 
skiff  or  steamboat,  or  steam  or  street  railroads.  If  any  person  on  the 
Sabbath  day  shall  himself  be  found  at  his  own,  or  any  other  trade  or 
calling,  or  shall  employ  his  apprentices,  or  other  person,  in  labor  or 
other  business,  whether  the  same  be  for  profit  or  amusement,  unless 
such  as  is  permitted  above,  he  shall  be  fined  not  less  than  two  nor 
more  than  fifty  dollars  for  each  offense.  Every  person  or  apprentice 
so  employed  shall  be  deemed  a  separate  offense.  Persons  who  are 
members  of  a  religious  society,  who  observe  as  a  Sabbath  any  other 
day  in  the  week  than  Simday,  shall  not  be  liable  to  the  penalty  pre- 
scribed in  this  section,  if  they  observe  as  a  Sabbath  one  day  in  each 
seven,  as  herein  provided. 

"1322.  That  any  person  who  engages  in  the  business  of  barbering 
on  Sunday  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon,  con- 


KENTUCKY.  93 

viction  thereof,  shall  be  fined  not  more  than  five  dollars,  and  upon  a 
second  conviction  for  a  like  offense,  shall  be  fined  not  less  than  ten 
dollars  and  not  more  than  twenty-five  dollars,  or  imprisoned  in  the 
county  jail  for  a  period  of  not  less  than  five  days  nor  more  than 
ten  days,  or  be  both  fined  and  imprisoned,  at  the  discretion  of  the 
court. 

"1323.  If  any  person  shall  hunt  game,  with  a  gun  or  dogs,  on  the 
Sabbath,  he  shall  be  fined  not  less  than  five  nor  more  than  fifty  dol- 
lars for  each  offense,     (pp.  582,  583.) 

"1369.  No  spirituous  liquors  shall  be  kept  or  sold  in  any  room 
■where  a  billiard,  pigeon-hole  or  pool  table  is  kept;  nor  shall  any  game 
be  played  on  such  table  on  Sunday."  (p.  591.)  The  penalty  is  sixty 
dollars  fine  and  forfeiture  of  license. 

"4567.  A  writ  of  habeas  corpus,  or  process  on  a  charge  of  treason, 
felony  or,  for  a  riot  or  breach  of  the  peace,  or  upon  an  escape  out  of 
custody,  may  be  executed  on  Sunday,     (p.  1598.) 

Prosecutions  under  this  law  must  be  begun  within  six  months  after 
the  offense  is  committed. 

The  constrtiction  of  the  act  forbidding  labor  on  the  Sab- 
bath was  passed  upon  by  the  Court  of  Appeals  in  1851  in  the 
•case  of  Ray,  etc.,  v.  Catlett  and  Buck.  Petition  was  brought  by 
the  latter  upon  a  note  executed  to  them  by  George  W.  and  Wil- 
liam W.  Ray.  The  defendants  plead  that  the  note  was  executed 
on  the  Sabbath  for  drugs  purchased  on  that  day.  Judge  Mar- 
shall in  delivering  the  opinion  of  the  Court  said : 

"One  object  of  the  statute  was  to  secure  the  observance  of  that 
decorum  and  quiet  which,  in  a  Christian  countrj^  is  due  to  the  Chris- 
tian Sabbath;  another  object  was  to  secure  to  all  laborers,  and  especi- 
ally to  apprentices  and  slaves,  which  include  all  classes  of  persons  w^ho 
are  in  the  employment  of  others,  one  day  of  rest  in  seven."  "We  are 
not  prepared  to  decide  that  the  mere  execution  and  delivery  of  a  note, 
or  Its  mere  acceptance,  on  Sunday,  is  laboring  in  any  trade  or  calling, 
unless  it  be  a  part  of  some  other  transaction  done  also  on  Sunday, 
which  may  be  regarded  as  labor  in  some  trade  or  calling.  And  if  the 
mere  execution  and  delivery  of  a  note  could  be  deemed  such  labor,  we 
are  satisfied  that  its  mere  acceptance  could  not,  and  the  person  ac- 
cepting it  would  not  be  involved  in  any  consequence  of  a  breach  of  the 
law  by  the  other,  unless  he  knew  that  the  note  had  been  made,  as  well 
as  delivered  on  Sunday."  "Our  statutes  protect  religious  worship  from 
disturbance,  but  can  neither  compel  attendance  upon  it,  or  contribute 
toward  its  maintenance  nor  any  devotional  duties  or  observances. 
And  we  are  satisfied  that  the  particular  clause  now  in  question  had 
no  other  object  in  view  but  that  of  enforcing  decorum  and  quiet  on  a 
day  regarded  as  holy  by  a  large  portion  of  the  community,  and  of  se- 
•<5uring  rest  from  labor  on  that  day  (unless  where  some  other  day  is 


g^  KENTUCKY. 

kept  as  a  i-eligious  observance),  to  all  persons  employed  to  labor  for 
others.  It  is  quite  probable  that  the  Legislature  did  not  think  of  any 
efEect  which  this  provision  might  have  upon  isolated  transactions  of 
a  private  nature,  or  indeed  on  other  transactions  in  the  form  of  con- 
tracts."    (12  B.  M.  532,  1851.) 

A  contract  made  on  the  Sabbath  day  having  for  its  consideration 
the  performance  of  work  on  that  day,  which  is  prohibited  by  law,  can- 
not be  enforced.     (Slade  v.  Arnold  14  Ky.  287,  1853.) 

In  the  case  of  Murphy  v.  Thompson  the  Court  of  Appeals  said, 
"Our  statute  does  not  merely  prohibit  a  person  from  doing  work  on  the 
Sabbath  day,  in  his  own  trade  or  calling,  but  the  prohibition  embraces 
work  or  business  in  his  own  or  any  other  trade  or  calling,  and  applies 
to  every  description  of  secular  labor  or  business,  except  the  ordinary 
household  offices  of  daily  necessity,  or  other  work  of  necessity  or 
charity. 

"Exchanging,  or  as  it  is  usually  termed,  swapping  horses,  is  as 
much  a  trade  or  business  as  selling  a  horse,  or  any  other  commodity 
would  be.  It  is  a  violation  of  the  statute  when  done  on  the  Sabbath 
day.  ...  It  is  a  well  established  doctrine  of  law,  that  where  a  statute 
has  in  view  the  protection  of  the  public  morals,  a  contract  arising  out 
of  any  particular  act,  infringing  its  provisions,  cannot  be  supported,, 
although  the  statute  merely  inflict  a  penalty  for  the  doing  of  the  act, 
and  do  not  expressly  declare  the  contract  unlawful.  In  such  a  statute, 
a  penalty  implies  a  prohibition."     (14  Ky.  419,  1854.) 

The  following  from  an  opinion  by  the  Court  of  Appeals  is 
of  value  in  showing  that  the  Sabbath  is  not  to  be  classed  with 
holidays : 

"The  Christian  Sabbath  is  wisely  recognized  as  'a  day  of  rest,'  to 
be  devoted  to  religious  contemplation  and  observance,  free  from  secu- 
lar disturbance."  "In  both  the  popular  and  the  legal  sense,  a  holiday 
is  a  day  dedicated  by  usage,  not  to  rest  and  religious  devotion,  but  to 
amusement  and  festivity,  marked  by  the  general  liberty  and  hilarity 
of  all  classes  of  the  people."  "In  this  country  certain  memorable  days 
— as,  for  example,  the  4th  of  July  and  Christmas — have  been  long  and 
emphatically  observed  as  holidays,  but  Sunday  never."  (Moore  v. 
Hagan,  Duvall's  Reports,  437,  1866.) 

A  bail  bond  executed  on  Sabbath  for  the  appearance  of  a  person- 
accused  of  crime,  is  binding  on  the  sureties.     (5  Ky.  309,  1869.) 

A  note  signed  on  Sabbath  but  not  delivered  on  that  day  is  valid, 
the  person  to  whom  it  is  payable  not  being  a  party  to  the  illegal  act, 
(Dahoney,  etc.,  v.  Dahoney,  7  Bush.  217,  1879.) 

The  publication  of  ordinances  in  no  other  than  Sunday  papers  is 
not  such  a  publication  as  the  law  approves.  This  matter  came  before 
the  Court  of  Appeals  in  the  case  of  Ormsby  v.  City  of  Louisville.  The 
Court  said:  "A  publication  of  the  levy  ordinances  on  Sunday,  and 
on  no  other  day,  before  seeking  to  enforce  them  is  not  such  a  publica- 


KENTUCKY.  95 

tion  as  the  charter  requires,  or  the  law  of  this  State  approves.  It  is 
not  a  judicial  day,  nor  is  it  a  day  upon  which  any  work,  labor,  or  call- 
ing can  be  legally  pursued,  unless  of  necessity  or  charity."  "The  pub- 
lication is  a  violation  of  law,  and  no  citizen  is  bound  by  any  law  known 
to  us  to  read  secular  newspapers  on  Sunday  to  entitle  himself  to  the 
benefits  which  may  flow  from  publications  contained  in  them.  If  he 
chooses  he  may  refuse  to  read  them  on  Sunday  altogether,  and  none  of 
his  legal  rights  will  be  thereby  forfeited."     (79  Ky.  197,  1880.) 

In  The  Commonwealth  v.  The  Louisville  and  Nashville 
Railroad  Company  the  Court  of  Appeals  declared  as  follows  with 
respect  to  the  running  of  trains  on  the  Lord's  day : 

"The  law  regards  that  as  necessary  which  the  common  sense  of 
the  country  in  its  ordinary  mode  of  doing  business  regards  as  nec- 
essary: Railroad  companies,  as  carriers  of  passengers,  furnish  at  this 
day  almost  every  accommodation  to  the  traveller  that  is  to  be  found 
in  the  hotels  of  the  country.  His  meals,  as  well  as  sleeping  apart- 
ments are  often  furnished  him,  and  to  require  the  train,  when  on  its 
line  of  travel,  to  delay  its  journey,  that  the  passengers  may  go  to  a 
hotel  to  enjoy  the  Sabbath,  where  the  same  labor  is  required  to  be 
performed  for  him  as  upon  the  train,  or  to  require  him  to  remain  on 
the  train  and  there  live  as  he  would  at  the  hotel,  would  certainly  not 
carry  out  the  purpose  of  the  law,  and  besides,  the  necessity  for  reach- 
ing his  home  or  place  of  destination  must  necessarily  exist  in  so  many 
instances  as  to  make  it  indispensable  that  the  train  should  pursue  its 
way.  So  of  the  trains  transporting  goods,  merchandise,  live  stock, 
fruits,  vegetables,  etc.,  that,  by  reason  of  delay,  would  work  great  in- 
jury to  parties  interested.  A  private  carriage,  in  which  is  the  owner 
or  his  family,  driven  by  one  who  is  employed  by  the  month  or  the 
year  to  the  church  in  which  the  owner  worships,  or  to  the  home  of  his 
friend  or  relative,  on  the  Sabbath,  is  not  in  violation  of  the  statute. 
So  in  reference  to  the  use  of  street  railroads  in  towns  and  cities  on 
the  Sabbath  day.  Those  who  have  not  the  means  of  providing  their 
own  horses  or  carriages  travel  upon  street  cars  to  their  place  of  wor- 
ship, or  to  visit  their  friends  and  acquaintances;  and  such  is  the  ap- 
parent necessity  in  all  such  cases,  that  no  inquiry  will  be  directed  as 
to  the  business  or  destination  of  the  traveler,  whether  in  the  one 
case  or  the  other,  nor  will  an  inquiry  be  directed  as  to  the  character 
of  the  freight  being  transported;  nor  will  the  person  desiring  to  hire 
the  horse  from  the  livery  stable  be  compelled  to  disclose  the  purpose 
in  view  in  order  to  protect  the  keeper  from  the  penalty  of  the  law. 
Such  employments  are  necessary  and  not  within  the  inhibition  of  the 
statute."     (80  Ky.  291,  1882.) 

In  the  case  of  Louisville  &  Nashville  Railroad  Co.  v.  Common- 
wealth, the  Court  held  that  "the  company  would  be  excusable  for  re- 
pairing any  part  of  its  track  on  the  Sabbath  day  that  was  suddenly 


«96  LOUISIANA. 

rendered  unsafe  where  delay  might  endanger  the  safety  of  passengers 
or  property  in  its  charge,  and  where,  if  it  failed  to  make  the  repairs 
on  that  day  because  of  the  fact'  that  it  was  the  Sabbath  day,  and  in- 
jury were  to  befall  the  passengers  or  property  in  its  charge  in  conse- 
•quence  of  such  failure,  the  company  would  be  responsible.  But  this 
rule  does  not  apply  to  the  making  of  the  ordinary  repairs  of  its  track 
that,  having  in  view  the  safety  of  the  passengers  and  property  In 
charge,  can  be  done  on  any  other  day  than  Sunday  with  equal  safety." 
(92  Ky.  114,  1891.) 

A  person  injured  in  crossing  a  railroad  track  while  returning  from 
work  on  Sabbath  is  not  deprived  of  redress,  as  the  same  injury  would 
have  happened  on  any  other  day  in  like  circumstances.  (91  Ky.  434, 
1891.) 

The  exceptions  mentioned  in  Section  132 1  have  a  weakening 
effect  and  open  the  way  for  gross  desecrations  of  the  Lord's  day. 
Otherwise  the  law  is  commendable.  The  opinions  of  the  Su- 
preme Court,  especially  those  declaring  the  purpose  of  the  laws, 
the  one  distinguishing  the  Sabbath  from  mere  holidays  and  the 
one  declaring  legal  notices  in  Sunday  papers  to  be  prohibited,  are 
valuable. 

LOUISIANA.      (  1 904. ) 

"Sunday  Law"  is  the  title  of  the  act  of  this  State  relating 
to  the  first  day  of  the  week.     It  is  as  follows : 

"1.  That  from  and  after  the  31st  day  of  December,  A.  D.,  1886, 
all  stores,  shops,  saloons,  and  all  places  of  public  business,  which  are 
or  may  be  licensed  under  the  law  of  the  State  of  Louisiana,  or  under 
any  parochial  ior  municipal  law  or  ordinance,  and  all  plantation  stores, 
are  hereby  required  to  be  closed  at  twelve  o'clock  on  Saturday  nights, 
^nd  to  remain  closed  continuously  for  twenty-four  (24)  hours,  during 
which  period  of  time  it  shall  not  be  lawful  for  the  proprietors  thereof 
to  give,  trade,  barter,  exchange  or  sell  any  of  the  stock  or  any  article 
of  merchandise  kept  in  any  such  establishment. 

"2.  That  whoever  shall  violate  the  provisions  of  this  act,  for  each 
offense,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  trial  and 
conviction,  shall  pay  a  fine  of  not  less  than  twenty-five  dollars,  nor 
more  than  two  hundred  and  fifty  dollars,  or  be  imprisoned  for  not  less 
than  ten  days  nor  more  than  thirty  days,  or  both,  at  the  discretion  of 
the  Court;  provision  of  this  act  shall  not  apply  to  newsdealers,  keepers 
of  soda  fountains,  places  of  resort  for  recreation  and  health,  watering 
places,  and  public  pai'ks,  nor  prevent  the  sale  of  ice. 

"3.  That  the  provisions  of  this  act  shall  not  apply  to  newspaper 
offices,  printing  offices,  book  stores,  drug  stores,  apothecary  shops,  un- 
•dertaker  shops,  public  and  private  markets,  bakeries,   dairies,  livery 


LOUISINA.  97 

■stables,  railroads,  whether  steam  or  horse,  hotels,  boarding  houses, 
steamboats  and  other  vessels,  ware-houses  for  receiving  and  forward- 
ing freights,  restaurants,  telegraph  offices  and  theaters,  or  any  place 
of  amusement,  providing  no  intoxicating  liquors  are  sold  in  the  prem- 
ises; provided,  that  stores  may  be  opened  for  the  purpose  of  selling 
■anything  necessary  in  sickness  and  for  burial  purposes;  provided,  that 
nothing  in  this  act  shall  be  construed  so  as  to  allow  hotels  or  board- 
ing houses  to  sell  or  dispose  of  alcoholic  liquors,  except  wine  for  table 
use  on  Sundays;  and  provided,  further,  that  no  alcoholic,  vinous  or 
malt  liquors  shall  be  given,  traded  or  bartered  or  sold  or  delivered 
in  any  public  place  on  said  day,  except  where  actually  administered  or 
prescribed  by  a  practicing  physician  in  the  discharge  of  his  profes- 
sional duties  in  cases  of  sickness;  in  such  case  the  physicians  ad- 
ministering intoxicating  liquors  may  charge  therefor. 

"4.  That  all  laws  or  parts  of  laws  contrary  to  or  inconsistent 
with  the  provisions  hereof,  be  and  the  same  are  hereby  repealed." 
<Vol.  1,  pp.  399,  400.) 

The  City  of  Shreveport,  La.,  passed  an  ordinance  providing 
that  all  business  houses  in  the  city  should  be  closed  from  and 
after  9  o'clock  A.  ^I.,  on  Sabbath,  the  ordinance  not  to  apply 
to  drug  stores,  hotels,  barber  shops,  restaurants  and  livery 
stables.  In  the  case  of  the  City  of  Shreveport  v.  Levy,  the  de- 
fendant, a  Jew,  having  been  convicted  in  the  Recorder's  Court, 
.and  fined  for  selling  goods  on  Sabbath,  the  Supreme  Court  said : 

"If  the  ordinance  stopped  here,  perhaps  it  might  do  very  well,  but 
it  goes  on  and  provides  further  that  it  shall  not  apply  to  any  person 
or  persons  doing  business  in  the  city  who  close  up  their  places  of 
business  on  Saturdays,  and  keep  them  closed  during  the  whole  day. 

"It  is  admitted  in  thQ  record  that  a  large  proportion  of  persons 
engaged  in  mercantile  pursuits  in  the  city  of  Shreveport  are  Jews, 
many  of  whom  observe  the  Jewish  Sabbath.  Before  the  constitution 
Jews  and  Gentiles  are  equal;  by  the  law  they  must  be  treated  alike, 
and  the  ordinance  of  City  Council  which  gives  to  one  sect  a  privilege 
which  it  denies  to  another,  violates  both  the  Constitution  and  the  law, 
-and  is  therefore  null  and  void."     (26  La.  671,  1874.) 

The  Sabbath  Law  of  Louisiana  was  enacted  in  1886.  Its 
constitutionality  was  tested  in  the  following  year  in  the  case  of 
State  ex  rel.  Walker  and  Merz  v.  Judge.  The  following  were 
the  grounds  on  which  its  unconstitutionality  was  charged:  It 
violates  Art.  4  of  the  State  Constitution  which  prohibits  the 
passage  of  any  law  "respecting  the  establishment  of  religion  or 
prohibiting  the  free  exercise  thereof;  that  it  violates  the  Four- 
teenth Amendment  of  the  Constitution  of  the  United  States  which 
iorbids  any   State  to   "make   or   enforce   any    law   which    shall 


gS  LOUIS  IN  A. 

abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  that  it  violates  both  State  and  National  Constitution  in 
depriving  citizens  of  life,  liberty  or  property  without  due  process 
of  law,  and  denies  to  some  the  equal  protection  of  the  law.  None 
of  these  objections  was  sustained.  The  Court  said  on  the  first 
of  these  objections : 

"If  the  object  of  this  law  were  to  compel  the  observance  of  Sun- 
day, as  a  religious  institution,  because  it  is  the  Christian  Sabbath,  to 
be  kept  holy  under  the  ordinances  of  the  Christian  religion,  we  should 
not  hesitate  in  declaring  it  to  be  violative  of  the  above  constitutional 
provision.  It  would  violate  equally  the  religious  liberty  of  the  Chris- 
tian, the  Jew  and  the  infidel,  none  of  whom  can  be  compelled  by  law 
to  comply  with  any  merely  religious   observance,  whether  it  accords 

with  his  faith  and  conscience  or  not The  statute  is  to  be  judged 

precisely  as  if  it  had  selected  for  the  day  of  rest  any  day  of  the  week 
other  than  Sunday;  and  its  validity  is  not  to  be  questioned  because, 
in  the  exercise  of  a  wise  discretion,  it  has  chosen  that  day  which  the 
majority  of  the  inhabitants  of  the  State,  under  the  sanction  of  their 
religious  faith,  already  voluntarily  observe  as  a  day  of  rest." 

As  to  the  second  objection  the  Court  held  that  the  privileges  and 
immunities  referred  to  were  those  belonging  to  citizens  as  citizens  of 
the  United  States,  not  as  citizens  of  one  of  the  States. 

As  to  the  third  the  Court  replied  by  upholding  the  law  as  a  police 
regulation,  quoting  with  approbation  the  following  paragraph  from 
Tiedeman  on  Police  power,  page  181. 

"Whatever  the  metaphysicians  or  theologians  may  tell  us  about 
free  will,  in  the  complex  society  of  the  present  age,  the  individual  is 
a  free  agent  to  but  a  limited  degree.  H&  is  in  the  main  but  the  crea- 
ture of  circumstances.  Those  who  most  need  the  cessation  from  labor 
are  unable  to  take  the  necessary  rest,  if  the  demands  of  the  tiade 
should  require  their  uninterrupted  attention  to  business.  And  if  the 
law  did  not  interfere,  the  feverish,  intense  desire  to  acquire  wealth, 
inciting  a  relentless  rivalry  and  competition,  would  ultimately  prevent, 
not  only  the  wage-earners,  but  likewise  the  capitalists  and  employers 
themselves,  from  yielding  to  the  warning  of  nature,  and  obeying  the 
instincts  of  self-preservation  by  resting  periodically  from,  labor.  Re- 
move the  prohibition  of  law  and  this  wholesome  sanitary  regulation 
would  cease  to  be  observed." 

As  to  the  charge  that  the  act  denies  to  some  the  equal  protection 
of  the  law,  the  Court  said:  "The  law  leaves  the  Jew  at  entire  liberty 
to  observe  his  own  religious  Sabbath,  but  it  is  not  bound  to  take  cog- 
nizance of  individual  religious  beliefs  as  a  ground  of  exemption  from 
the  operation  of  general  laws. 

"Uniformity  in  the  day  fixed  is  essential  to  the  successful  execu- 
tion of  the-  law,  which  would  be  rendered  much  more  difficult  if  a  dif- 
ferent day  of  rest  were  assigned  to  various  classes,  besides  the  in- 


LOUISINA.  99 

convenience  to  the  business  interests  of  the  community  which  would 
result  from  the  partial  suspension  of  trade  on  several  different  days." 
(39  La.  132.) 

In  State  v.  Fernandez,  it  was  held  that  "the  Sunday  Law  operates 
uniformly  throughout  the  State,  and  cannot  be  construed  so  as  to  au- 
thorize to  be  done,  in  one  place,  on  Sundays,  that  which  it  forbids  to 
be  done,  on  that  day,  in  all  other  places."  The  law  of  Louisiana  ex- 
empts public  markets  from  the  prohibition  of  the  law.  In  this  case 
Fernandez  kept  a  grocery  in  the  market.  The  Court  held  that  as  the 
grocery  business  is  prohibited  elsewhere  it  cannot  be  carried  on  in 
a  public  market.     (39  La.  538,  1887.) 

A  question  as  to  the  interpretation  of  the  law  came  before  the 
Supreme  Court  in  189G,  in  State  v.  Gelpi.  Mr.  Gelpi  represented  a 
social  club,  incorporated,  '"established  for  the  improvement  of  the  mem- 
bers, and  for  social  enjoyment  and  pleasure."  Within  the  precincts  of 
the  club  there  is  a  place  where  liquors  are  distributed  to  members 
only.  The  treasurer  testified  that  the  revenues  of  the  club  are  all  de- 
rived from  the  dues  paid  by  the  members  and  from  the  sale  of  liquors 
to  them.  He  also  testified  that  these  revenues  are  applied  to  the  pay- 
ment of  the  expenses  of  the  club,  and  that  the  sales  are  not  made  with 
a  view  to  profit.  The  club  rooms  were  open  and  liquor  sold  on  the 
Sabbath.  But  the  plea  was  made  that  since  the  club  was  private,  no 
liquor  being  sold  to  any  but  members,  and  since  no  profit  was  made 
from  the  sales,  the  club  was  not  subject  to  the  prohibitions  of  the 
Sabbath  law. 

The  Court  had  no  difficulty  in  reaching  the  conclusion  that  the 
club  was  private,  but  held  that  the  bar  of  such  a  club  is  bound  by  the 
same  law  as  applies  to  other  bars,  and  is  therefore  required  to  close 
on  the  Sabbath.     (48  La.  520.) 

The  list  of  exceptions  entimerated  in  the  law  of  Louisiana  is 
so  formidable  and  some  of  the  things  excepted  are  so  objection- 
able that  seriotis  doubts  might  be  entertained  as  to  the  law's  utili- 
ty. It  might  be  better  for  the  people  to  engage  in  some  of  the 
things  prohibited  than  to  spend  the  day  in  the  enjoyment  of  the 
things  excepted. 

Although  the  law  is  sustained  as  constitutional  the  court 
surely  errs  in  stating  that  it  is  to  be  judged  as  if  any  other  day 
of  the  week  had  been  selected  as  the  day  of  rest.  This  statement 
overlooks  entirely  the  fact  that  the  Sabbath  occuring  on  the  fir.st 
day  of  the  week  is  a  civil  institution,  and  that  the  observance  of 
it  on  that  day  is  part  of  the  common  law  of  the  land.  With  all 
its  imperfections,  however  this  law  must  have  some  good  points 
as  is  evident  from  some  of  the  cases  that  have  arisen. 


loo  MASS  A  CH  USE  ITS. 

MASSACHUSETTS.      (1902.) 

"Of  the  Observance  of  the  Lord's  Day"  is  the  title  of  that 
portion  of  the  statutes  of  Massachusettes  relating  to  the  Sabbath 
found  in  Chapter  98.     It  is  as  follows : 

"1.  Whoever,  on  the  Lord's  day,  is  present  at  a  game,  sport,  play- 
er public  diversion,  except  a  concert  of  sacred  music,  or  an  entertain- 
ment given  by  a  religious  or  charitable  society  the  proceeds  of  which, 
if  any,  are  to  be  devoted  exclusively  to  a  charitable  or  religious  pur- 
pose upon  the  Lord's  day,  shall  be  punished  by  fine  not  exceeding  five 
dollars  for  each  offense. 

"2.  Whoever,  on  the  Lord's  day,  keeps  open  his  shop,  warehouse  or 
workhouse,  or  does  any  manner  of  labor,  business  or  work,  except 
works  of  necessity  and  charity,  or  takes  part  in  any  sport,  game,  play, 
or  public  diversion,  except  a  concert  of  sacred  music,  or  an  entertain- 
ment given  by  a  religious  or  charitable  society,  the  proceeds  of  which, 
if  any,  are  to  be  devoted  exclusively  to  a  charitable  or  religious  pur- 
pose, shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  for 
each  offense;  and  the  proprietor,  manager  or  person  in  charge  of  such 
game,  sport,  play  or  public  diversion,  except  as  aforesaid,  shall  be  pun- 
ished by  a  fine  of  not  less  than  fifty  nor  more  than  five  hundred  dol- 
lars for  each  offense. 

"3.  The  provisions  of  the  preceding  section  shall  not  be  held  to 
prohibit  the  manufacture  and  distribution  of  steam,  gas  or  electricity, 
for  illuminating  purposes,  heat  or  motive  power,  nor  the  distribution 
of  water  for  fire  or  domestic  purposes,  nor  the  use  of  the  telegraph  or 
the  telephone,  nor  the  retail  sale  of  drugs  and  medicines,  nor  articles 
ordered  by  the  prescription  of  a  physician  or  mechanical  appliances 
used  by  physicians  or  surgeons,  nor  the  retail  sale  of  tobacco  in  any 
of  its  forms  by  licensed  inn-holders,  common  victuallers,  druggists  and 
newsdealers  whose  stores  are  open  for  the  sale  of  newspapers  every 
day  in  the  week,  nor  the  letting  of  horses  and  carriages  or  of  yachts 
and  boats,  nor  the  running  of  steam  ferry  boats  on  established  routes, 
nor  the  running  of  street  railway  cars,  nor  the  preparation,  printing 
and  publication  of  newspapers,  nor  the  sale  and  delivery  of  newspapers, 
nor  the  wholesale  or  retail  sale  and  delivery  of  milk,  nor  the  transpor- 
tation of  milk,  nor  the  making  of  butter  and  cheese  nor  the  keeping 
open  of  public  bath  houses,  nor  the  making  or  selling  by  bakers  or 
their  employes,  before  ten  o'clock  in  the  morning  and  between  the 
hours  of  four  o'clock  and  half-past  six  o'clock  in  the  evening,  of  bread 
or  other  food  usually  dealt  in  by  them,  nor  the  carrying  on  of  the  busi- 
ness of  bootblacks  before  eleven  o'clock  in  the  forenoon. 

"4.  Whoever  conscientiously  believes  that  the  seventh  day  of  the 
week  ought  to  be  observed  as  the  Sabbath,  and  actually  refrains  from 
secular  business  and  labor  on  that  day,  shall  not  be  liable  to  the  pen- 


MASSAC  in  SETTS.  loi 

alties  of  section  two  for  performing  secular  business  and  labor  on  the 
Lord's  day  if  he  disturbs  no  other  person. 

"5.  The  provisions  of  the  preceding  sections  shall  not  be  held  to 
prohibit  the  giving,  being  present  at,  or  taking  part  in,  on  the  Lord's 
day,  a  concert  of  sacred  music  or  an  entertainment  given  by  a  religious 
or  charitable  society  the  proceeds  of  which,  if  any,  are  to  be  devoted 
exclusively  to  a  charitable  or  religious  purpose,  or  a  free  open  air  con- 
cert given  by  a  city  or  town,  or  by  license  of  the  Mayor  and  Aldermen 
of  a  city  or  the  selectmen  of  a  town,  upon  a  common,  public  park,  street 
or    square. 

"6.  Whoever,  keeping  a  house,  shop,  cellar  or  place  of  public  en- 
tertainment or  refreshment,  entertains  therein  on  the  Lord's  day  any 
persons  other  than  travellers,  strangers,  or  lodgers,  or  suffers  such  per- 
sons on  said  day  to  abide  or  remain  therein,  or  in  the  yards,  orchards, 
or  fields  appertaining  to  the  same,  drinking  or  spending  their  time 
idly  or  at  play,  or  in  doing  any  secular  business,  shall  be  punished  by  a 
fine  of  not  more  than  fifty  dollars  for  each  person  so  entertained  or  suf- 
fered so  to  abide  or  remain;  and  upon  subsequent  conviction,  by  a 
fine  of  not  more  than  one  hundred  dollars;  and  if  convicted  three  times, 
he  shall  thereafter  be  disqualified  to  hold  a  license. 

"7.  An  innholder  or  other  person  who,  being  licensed  to  keep  a 
place  of  public  entertainment,  entertains  or  suffers  to  remain  or  be  in 
his  house,  yard  or  other  places  appurtenant,  any  person  other  than 
travellers,  strangers  or  lodgers  in  such  house,  drinking  and  spending 
their  time  there,  on  the  Lord's  day,  or  on  the  evening  preceding  the 
same,  shall  be  punished  by  a  fine  of  not  more  than  five  dollars  for  each 
offense. 

"8.  A  civil  process  shall  not  be  served  or  executed  on  the  Lord's 
day,  and  such  service  if  made  shall  be  void,  and  the  person  who  serves 
or  executes  it  shall  be  liable  in  damages  to  the  person  aggrieved  in 
like  manner  as  if  he  had  no  such  process. 

"9.  Whoever,  on  the  Lord's  day,  behaves  rudely  or  indecently 
within  the  walls  of  any  house  of  public  worship  shall  be  punished  by 
a  fine  of  not  more  than  ten  dollars. 

"10.  Prosecutions  for  penalties  incurred  under  the  preceding  pro- 
visions of  this  chapter  shall  be  commenced  within  six  months  after  the 
offense  was  committed. 

"11.  Sheriffs,  constables,  and  grand  jurors  shall  inquire  into  and 
inform  of  all  offenses  against  the  provisions  of  this  chapter,  and  cause 
the  same  to  be  enforced. 

12.  Whoever,  on  the  Lord's  day,  discharges  any  firearm  for  sport 
or  In  the  pursuit  of  game,  or  attempts  to  take  or  catch  any  fish  by 
using  a  hook,  line,  net,  spear  or  other  implement,  shall  be  punished 
by  a  fine  not  more  than  ten  dollars.  Prosecutions  under  the  provis- 
ions of  this  section  shall  be  commenced  within  thirty  days  after  the 
time  the  offense  was  committed. 

"13.     Any  innholder,  common  victualler  or  person  keeping  or  suf- 


I02  MASSACHUSETTS. 

fering  to  be  kept  in  any  place  occupied  by  him  implements  such  as  are 
used  in  gaming,  in  order  that, the  same  may  for  hire,  gain  or  reward 
be  used  for  purposes  of  amusement,  who,  on  the  Lord's  day,  uses  or  suf- 
fers to  be  used  any  such  implements  upon  any  part  of  his  premises, 
shall  for  the  first  offense  be  punished  by  a  fine  of  not  more  than  one 
hundred  dollars  or  imprisonment  for  not  more  than  three  months;  and 
for  each  subsequent  offense  by  imprisonment  for  not  more  than  one 
year;  and  in  either  case  shall  further  recognize,  with  sufficient  securi- 
ties, ^in  a  reasonable  sum  for  his  good  behaviour,  and  especially  that 
he  will  not  be  guilty  of  any  offense  against  the  provisions  of  this  Sec- 
tion for  three  months  after  the  date  of  his  recognizance. 

"14.  The  board  of  railroad  commissioners  may  authorize  the  run- 
ning, on  the  Lord's  day,  of  such  steamboat  lines  and  such  trains  upon 
any  railroad,  as,  in  the  opinion  of  the  board,  the  public  necessity  and 
convenience  requires,  having  regard  to  the  due  observance  of  the  day. 

"15.  The  board  of  railroad  commissioners  may,  if  in  their  opinion 
the  public  necessity,  convenience,  health  or  welfare  so  requires,  author- 
ize the  running  of  steamboats  on  the  Lord's  day  for  the  entire  year  or 
any  part  thereof,  upon  such  conditions  as  they  deem  judicious  to  pi-e- 
vent  disorderly  conduct  or  the  disturbance  of  public  worship,  and  may 
at  any  time  revoke  such  authority. 

"16.  The  Lord's  day  shall  include  the  time  from  midnight  to  mid- 
night. 

"17.  The  provisions  of  this  chapter  shall  not  constitute  a  defense 
to  an  action  for  a  tort  or  injury  suffered  by  a  person  on  the  Lord's 
day.     (Vol.  1,  pp.  830,  832). 

In  Pearce  v.  Atwood  the  Supreme  Court  of  Massachussetts  upheld 
the  law  in  the  following  words: 

"It  is  true,  that  from  the  fourth  command  in  the  Decalogue  it  may 
be  inferred,  that  one  day  in  seven  was,  according  to  the  divine  will, 
to  be  set  apart  as  a  day  of  rest  from  labor.  But  none  will  contend, 
that  the  day  therein  sanctified  is  the  day  which  Christians  are  bound 
to  keep  as  holy  time;  or  that  any  of  the  rigid  laws  of  Moses  are  now 
in  force.  It  is  enough  to  observe,  that,  by  the  universal  consent  of 
Christians,  another  holy  day  has  been  substituted,  and  that  works  ot 
necessity  and  charity  are  not  profanations  of  the  Christian  Sabbath."* 
(13  Mass.  324). 

In  1877  the  constitutionality  of  the  law  was  upheld  in  Com- 
monwealth V.  HaL.  The  charge  against  Has  was  that  he  kept 
his  shop  open  on  the  first  day  of  the  week.  His  plea  was  that 
he  was  a  Jew  and  kept  the  seventh  day,  and  was  therefore  en- 


*Whlle  it  is  the  opinion  of  many  that  the  Fourth  Commandment  specifically  desig- 
nates the  seventh  day  of  the  week  as  holy  time,  and  while  a  tew  believe  that  that  dar 
shouH  still  be  observed,  the  true  view  is  that  this  commandment  requires  the  observance 
of  the  seventh  day  after  six  of  labor,  the  day  to  be  observed  being  elsewhere  designated* 
This  topic  is  more  fully  considered  in  chapter  IV,  p.  2'2?. 


MASS  A  CH  USETTS.  103 

titled  to  exemption  from  the  law's  prohibition.  The  Court  said : 
"Keeping  open  a  shop  is  in  itself  a  solicitation  to  do  business,  and 
thus  an  invitation  to  commit  acts  which  the  Legislature  has  treated 
as  violations  of  the  day.  While  those,  who,  for  conscientious  reasons, 
observe  the  seventh  day  of  the  week  as  the  Sabbath,  may  do  business 
or  perform  labor  which  does  not  interfere  with  others,  tliey  are  not 
entitled  by  keeping  open  their  shops  to  invite  the  violation  of  the  pro- 
visions of  the  act,  even  if  the  ordinary  business  is  shopkeeping.  It  is, 
however,  contended  that,  if  the  true  construction  of  the  statute  i§  that 
it  forbids  to  one,  who  conscientiously  observes  the  seventh  day  of  the 
week  as  the  Sabbath,  the  privilege  of  keeping  open  his  shop  on  the  first 
day  of  the  week,  it  is  unconstitutional  and  in  derogation  of  the 
Eleventh  Amendment  to  the  Constitution  of  the  Commonwealth,  which 
provides  that  'no  subordination  of  any  one  sect  or  denomination  to 
another  shall  ever  be  established  by  law.' 

"This  act  has  been  so  frequently  recognized  in  both  civil  and  crim- 
inal cases,  and  its  various  provisions  have  been  so  often  the  subject 
of  judicial  decisions,  that  its  constitutionality  can  hardly  be  considered 
an  open  question.  It  is  essentially  a  civil  regulation,  providing  for  a 
fixed  period  of  rest  in  the  business,  the  ordinary  avocations  and  the 
amusements  of  the  community.  If  there  is  to  be  such  a  cessation  from 
labor  and  amusement,  some  one  day  must  be  selected  for  the  purpose; 
and  even  if  the  day  thus  selected  is  chosen  because  a  great 
majority  of  the  people  celebrate  it  as  a  day  of  peculiar  sanc- 
tity, the  legislative  authority  to  provide  for  its  observance  is 
derived  from  its  general  authority  to  regulate  the  business  of  the 
■community  and  to  provide  for  its  moral  and  physical  welfare. 
The  act  imposes  upon  no  one  any  religious  ceremony  or  attendance 
upon  any  form  of  worship,  and  any  one,  who  deems  another  day  more 
suitable  for  rest  or  worship,  may  devote  that  day  to  the  religious  ob- 
servance which  he  deems  appropriate.  That  one  who  conscientiously 
observes  the  seventh  day  of  the  week  may  also  be  compelled  to  abstain 
from  business  of  the  kind  expressly  forbidden  on  the  first  day,  is  not 
occasioned  by  any  subordination  of  his  religion,  but  because  as  a  mem- 
'ber  of  the  community  he  must  submit  to  the  rules  which  are  made  by 
lawful  authority  to  regulate  and  govern  the  business  of  that  commun- 
ity."    (122  Mass.  40). 

What  are  works  of  necessity  is  a  question  to  which  much 
attention  has  been  given. 

A  decision  of  considerable  importance  was  rendered  by  the 
Supreme  Judicial  Court  of  INIassachusetts  in  1809,  in  the  case  of 
Commonwealth  v.  Knox  (6  Mass.  76).  A  contract  had  been 
ir.ade  by  the  postmaster-general  with  Josiali  Paine  for  carrying 
the  Mail  between  Portland  and  Boston,  on  each  day  of  the  week. 
James  Knox,  the  servant  of  Paine,  was  arrested  for  unlawfully 


I04  3IASSACHUSETTS. 

travelling,  with  a  stage  carri^age  for  passengers,  through  the 
town  of  Newbnryport,  on  the  Lord's  day.  The  case  reached  the 
Supreme  Court,  and  that  court  in  defining  works  of  necessity 

said : 

"By  necessity  cannot  be  understood  physical  necessity;  for  a  case 
in  which  any  man  is  physically  obliged  to  travel,  can  hardly  be  im- 
agined. But  a  moral  fitness  or  propriety  of  travelling,  under  the  cir- 
cumstances of  any  particular  case,  may  be  deemed  necessity  within  this 
section;  and  a  fortiori,  when  the  travelling  is  necessary  to  execute  a. 
lawful  contract,  it  cannot  be  considered  as  unnecessary  travelling, 
against  the  prohibition  of  the  statute. 

"It  may  be  said  that  the  postmaster-general  is  not  obliged  by  law 
to  contract  with  any  person  to  carry  the  mail  on  the  Lord's  day.  This 
is  true;  but  he  has  authority  to  make  such  contract,  and  there  may  be- 
times, as  in  case  of  war  or  insurrection,  when  this  authority  should  be 
exercised.  And  at  all  times  it  is  within  his  discretion  whether  to  ex- 
ercise it  or  not." 

In  1849,  ^^  Flagg  V.  the  inhabitants  of  Millbury,  it  was  held, 
that  a  defect  in  the  public  highway  which  may  endanger  the  limbs- 
and  lives  of  travellers,  if  discovered  on  the  Lord's  day,  should  be 
immediately  repaired.     (4  Cush.  243). 

An  opinion  of  more  than  usual  value,  given  in  a  case  in 
which  the  law  was  violated  by  parties  collecting  sea  weed  on  the 
Sabbath,  was  handed  down  in  1867.  In  defining  works  of  ne- 
cessity and  charity  the  Court  said : 

"It  is  no  suflScient  excuse  for  work  on  the  Lord's  day,  that  it  is 
more  convenient  or  profitable  if  then  done  than  it  would  be  to  defer  or 
omit  it.  If  a  vessel  had  been  wrecked  upon  the  beach  it  would,  have 
been  lawful  to  work  on  Sunday  for  the  preservation  of  property  which 
might  be  lost  by  delay.  But  if  the  fish  in  the  bay  or  the  birds  on  the 
shore  happened  to  be  uncommonly  abundant  on  the  Lord's  day,  it 
is  equally  clear  that  it  would  furnish  no  excuse  for  fishing  or  shooting: 
on  that  day."  "The  deposit  of  seaweed  upon  the  shore  by  the  waves, 
if  not  constant,  is  frequent.  The  collecting  of  it  on  the  beach  as  it  is; 
found  there  from  time  to  time  is  one  of  the  ordinary  branches  of  agri- 
cultural labor.  We  therefore  think  that  the  work  of  the  defendants 
(collecting  seaweed)  was  not  a  work  of  necessity."     (97  Mass.  410). 

Many  cases  have  come  before  the  Courts  of  Massachusetts 
requiring  an  interpretation  of  the  law  as  it  relates  to  various  busi- 
ness transactions.  The  following  will  show  the  construction- 
placed  upon  the  law  by  the  Supreme  Court : 

In  Geer  v.  Putnam  it  was  held  that  "it  is  no  bar  to  the  recovery  of 
judgment  on  a  promissory  note  that  it  was  made  on  Sunday."  (10' 
Mass.  311,  1813). 


MASSACHUSETTS.  105 

Later  opinions  do  not  seem  to  be  in  harmony  with  this.  In  Clapp 
V.  Hale  it  was  held  that  a  payment  made  on  a  promissory  note  on  the 
Sabbath  will  not  take  it  out  of  the  operation  of  the  statute  of  limita- 
tion.    (112  Mass.  368,  1873). 

In  Pattee  v.  Putnam  it  was  held  that  action  cannot  be  maintained 
on  a  bond  which  was  executed  on  the  Lord's  day  neither  from  necessity 
nor  charity.     (13,  Met.  284,  1847). 

A  guarantee  for  the  fulfillment  of  a  lease  executed  and  delivered  on 
the  Lord's  day  is  void.     (10  Cush.  257,  1852). 

An  action  cannot  be  maintained  for  a  deceit  practiced  in  a  horse 
trade  on  the  Lord's  day.     (Robson  v.  French,  12  Met.  24,  1847). 

The  principle  involved  in  all  such  cases  is  stated  as  follows:  "One 
who  has  himself  participated  in  a  violation  of  law  cannot  be  permit- 
ted to  assert  in  a  court  of  justice  any  right  founded  upon  or  growing  out 

of  the  illegal  transaction It  is  upon  this  principle  that  a  bond,. 

promissory  note  or  other  executory  contract,  made  and  delivered  upon 
the  Lord's  day,  is  incapable  of  being  enforced,  or,  as  is  sometimes  said, 
absolutely  void,  as  between  the  parties."  (Cranson  v.  Goss,  107  Mass., 
439,  1871). 

The  case  of  Stevens  v.  Wood  (127  Mass.  123,  1879),  illus- 
trates the  method  sometimes  taken  by  dishonest  people  to  avoid 
paying  their  debts : 

"Wood  gave  a  promissory  note  to  Fletcher.  Fletcher,  being  away 
from  home,  and  finding  that  the  note  would  soon  be  barred  by  the 
statute  of  limitations,  sent  it  to  his  friend  Ball  either  to  collect  or  have 
it  renewed.  Wood  gave  Ball  a  new  note  on  Sabbath  but  dated  on  a 
secular  day,  and  Ball  in  due  time  delivered  it  to  Fletcher,  who  signed 
it  over  to  Stevens.  Neither  Fletcher  nor  Stevens  knew  that  the  note 
was  drawn  on  Sabbath.  Wood  in  making  and  delivering  the  note  on 
the  Lord's  day  intended  to  defraud.  The  Supreme  Court  held  that  the 
transaction  between  Wood  and  Ball  was  illegal,  that  Fletcher  could  not 
maintain  an  action  thereon,  nor  could  Stevens,  and  that  the  purpose 
of  Wood  was  immaterial. 

A  contract  to  furnish  music  by  a  band  seven  days  m  the  week 
is  illegal.    (Stewart  v.  Thayer,  1G8  Mass.  519,  1897). 

Previous  to  the  passage  of  Section  17  of  the  ^Massachusetts 
Sabbath  law  many  suits  came  before  the  courts  for  damages 
on  account  of  injuries  received  while  travelling  on  the  Lord's 
day.  The  question  involved  was  whether  or  not  the  travelling 
was  necessary.  This  section  allows  damages  in  any  case  in  which 
the  injury  was  the  result  of  the  carelessness  or  negligence  of  the 
transportation  company.  Formerly  the  ]\Iassachusetts  Courts 
uniformly  held  that  unless  the  travelling  was  a  matter  of  neces- 
sity or  charity  damages  could  not  be  recovered. 

One  of  the  most  important  of  such  cases  was  that  of  Bucher 


io6  MASSACHUSETTS. 

V.  Fitchburg  Railroad  Company,  or  Bucher  v.  Cheshire  Railroad 
Company  as  it  is  known  in  the  United  States  Courts,  the  case 
having  been  carried  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  Massachusettes.  Mr.  Bucher  was  injured  while 
travelling  on  the  Lord's  day.  His  plea  was  that  he  was  hasten- 
ing to  Boston  where  he  expected  important  word  from  a  sick 
sister,  and  that  the  travelling  was  therefore  necessary.  The  Su- 
preme Judicial  Court  of  Massachusettes  held  that  there  was  no 
evidence  that  he  was  travelling  either  from  necessity  or  charity. 
(131  Mass.  156,  1881.) 

When  the  case  came  before  the  United  States  District  Court 
it  was  held  that  the  Courts  of  the  United  States  are  to  adopt  and 
follow  the  decisions  of  the  highest  courts  of  a  State  in  questions 
which  concern  merely  the  constitution  or  laws  of  that  State.  It 
was  clear  that  the  Courts  of  Massachusettes  uniformly  inter- 
preted the  law  as  indicated  above,  and  although  the  District 
Court  of  the  United  States  did  not  approve  of  the  interpretation 
it  was  still  under  obligation  to  follow  it.  Justices  Harlan  and 
Field  dissented  from  this  view,  holding  that  in  such  cases  United 
States  Courts  were  free  to  render  opinions  according  to  their 
own  views  of  justice.     (125  U.  S.  555,  1887.) 

While  there  are  some  excellent  features  in  the  Sabbath  law 
of  Massachusetts,  and  while  some  of  the  judicial  opinions  add 
something  to  the  argument  for  such  laws,  it  must  be  confessed 
that  both  the  law  and  the  opinions  are  quite  disappointing.  The 
long  list  of  exception  to  the  operation  of  the  prohibitory  clauses, 
some  of  which  would  be  included  under  the  clause  relating  to 
works  of  necessity  and  charity,  greatly  weakens  the  law  by  men- 
tioning many  things  which  are  not  matters  of  necessity  and 
charity,  and  which  interfere  with  the  peace  and  quietness  of  the 
■day.  This  State  at  one  time  had  one  of  the  best  of  Sabbath  laws. 
Now  it  has  one  of  the  worst. 

With  a  very  few  exceptions,  the  opinions  of  the  Supreme 
Court  display  only  a  mediocre  standard  of  ability.  They  are 
•chiefly  concerned  with  the  maintaining  of  a  hereditary  view  of 
the  law  as  applied  to  contracts  and  travelling  on  the  Lord's  day, 
and  that  view  is  almost  entirely  annulled  by  recent  legislation. 
It  may  be  that  the  effort  of  the  courts  to  uphold  the  traditional 
A'iew  had  something  to  do  with  the  adoption  of  the  exceptions 


MINNESOTA.  107 

■whereby  that  view  has  become  ancient  history.  In  the  cases  of 
contracts  made  on  the  Sabbath  involving  fraud,  would  it  not  be 
far  better,  while  holding  the  contract  illegal,  to  allow  action 
against  the  one  who  in  addition  to  violating  the  Sabbath  law  has 
also  violated  the  law  against  fraud?  Not  to  do  so  brings  this  law 
into  disrepute  as  a  screen  to  shield  dishonest  people. 

MINNESOTA.     (1891.) 

The  Section  of  the  Penal  Code  of  Minnesota  relating  to  the 
Sabbath  are  entitled,  "Of  Crimes  against  Religious  Liberty  and 
Conscience."     They  are  as  follows : 

"6178.  The  Sabbath. — The  first  day  of  the  week  being  by  general 
consent  set  apart  for  rest  and  religious  uses,  the  law  prohibits  the  do- 
ing on  that  day  of  certain  acts  hereinafter  specified,  which  are  serious 
interruptions  of  the  repose  and  religious  liberty  of  the  community. 

"6179.  Sabbath  breaking. — A  violation  of  the  foregoing  prohibi- 
tion is  Sabbath  breaking. 

"6180.  Sunday  defined. — Under  the  term  "day,"  as  employed  in 
the  phrase  "first  day  of  the  week,"  when  used  in  this  chapter,  is  includ- 
■ed  all  the  time  from  midnight  to  midnight. 

"6181.  Labor  on  Sunday. — All  labor  on  Sunday  is  prohibited  ex- 
cepting the  works  of  necessity  or  charity.  In  works  of  necessity  or 
charity  is  included  whatever  is  needful  during  the  day  for  good  order, 
health  or  comfort  of  the  community.  Provided  however,  that  keeping 
open  a  barber  shop  on  Sunday  for  the  purpose  of  cutting  hair  and  shav- 
ing beards  shall  not  be  deemed  a  work  of  necessity  or  charity. 

"6182.  Persons  observing  another  day  as  a  Sabbath. — It  is  a  suf- 
ficient defense  to  a  prosecution  for  servile  labor  on  the  first  day  of  the 
week  that  the  defendant  uniformily  keeps  another  day  of  the  week  as 
holy  time,  and  does  not  labor  upon  that  day,  and  that  the  labor  com- 
plained of  was  done  in  such  manner  as  not  to  interrupt  or  disturb 
other  persons  in  observing  the  first  day  of  the  week  as  holy  time. 

"6183.  Public  Sports. — All  shooting,  hunting,  fishing,  playing, 
horse  racing,  gaming,  or  other  public  sports,  exercises  or  shows,  upon 
the  first  day  of  the  week,  and  all  noise  disturbing  the  peace  of  the  day, 
are  prohibited. 

"6184.  Trades,  manufactures,  and  mechanical  employments. — All 
trades,  manufactures,  and  mechanical  employments  upon  the  first  day 
of  the  week  are  prohibited,  except  that  when  the  same  are  works  of 
necessity  they  may  be  performed  on  that  day  in  their  usual  and  or- 
derly manner,  so  as  not  to  interfere  with  the  repose  and  religious  lib- 
erty of  the  community. 

"6185.  Public  traffic. — All  manner  of  public  selling  or  offering  for 
sale  of  any  property  upon  Sunday  is  prohibited,  except  that  articles  of 
food  may  be  sold  and  supplied  at  any  time  before  ten  o'clock  in  the 


io8  .MINNESOTA. 

morning,  and  except  also  that  meals  may  be  sold  to  be  eaten  on  the 
premises  where  sold  or  served  elsewhere  by  caterers;  and  prepared 
tobacco  in  places  other  than  where  spirituous  or  malt  liquors  or  wines 
are  kept  or  offered  for  sale,  and  fruit,  confectionery,  newspapers,  drugs, 
medicines,  and  surgical  appliances  may  be  sold  in  a  quiet  and  orderly 
manner  at  any  time  of  the  day. 

"6186.  Serving  process  on  Sunday  prohibited. — All  service  of  legal 
process  of  any  kind  whatever,  upon  the  first  day  of  the  week,  is  prohib- 
ited, except  in  cases  of  breach  of  the  peace,  or  apprehended  breach  of 
the  peace,  or  when  sued  out  for  the  apprehension  of  a  person  charged 
with  crime,  or  except  where  such  service  is  specially  authorized  by 
statute. 

"6187.  Punishment  of  Sabbath  breaking. — Sabbath  breaking  is  a 
misdemeanor,  punishable  by  a  fine  not  less  than  one  dollar  and  not 
more  than  ten  dollars,  or  by  imprisonment  in  a  county  jail  not  ex- 
ceeding five  days,  or  by  both."     (Vol.  II,  pp.  499,  500). 

The  constitutionality  of  the  Minnesota  Sabbath  law  was  af- 
firmed by  the  Supreme  Court  in  1875,  in  the  case  of  the  State  v. 
Ludwig.  Mr.  Ludwig,  a  saloon  keeper  in  Minneapolis,  was 
charged  with  selling  liquor  on  the  Sabbath  in  violation  of  a  city 
ordinance  which  required  saloons  to  be  closed  on  that  day.  He 
was  first  tried  before  a  justice  of  the  peace  and  found  guilty.  He 
appealed  and  the  case  finally  reached  the  Supreme  Court.  Mr. 
Ludwig's  plea  was  that  the  law  is  tniconstitutional,  but  its  con- 
stitutionality was  affirmed  as  follows : 

"It  is  unnecessary  for  us,  at  this  time,  to  consider  to  what  extent 
the  legislature  may,  in  harmony  with  the  constitution,  make  laws 
recognizing  the  Christian  Sabbath,  and  regulating  its  observance.  All 
the  authorities  concur  that  the  legislature  may  by  law  establish,  as  a 
civil  and  political  institution,  the  first  day  of  the  week  as,  a  day  of  rest, 
and  may  prohibit,  upon  it,  the  performance  of  any  manner  of  labor, 
business  or  work,  except  only  works  of  necessity  and  charity,  and  may 
prohibit  anything  which  tends  to  injure  the  public  morals,  or  disturb 
the  peace  and  good  order  of  the  day."     (21  Minn.  202). 

The  constitutionality  of  the  law  was  put  to  the  test  again  in 
1898,  in  the  case  of  the  State  v.  Petit.  Mr.  Petit  was  tried  for 
keeping  open  a  barber  shop  on  Sabbath.  The  case  was  carried 
to  the  Supreme  Court.  The  only  question  raised  was  the  consti- 
tutionality of  the  law.  The  following  extracts  are  instructive : 
"In  some  states  it  has  been  held  that  Christianity  is  part  of  the 
common  law  of  this  country,  and  Sunday  legislation  is  upheld,  in  whole 
or  in  part,  upon  that  ground.  Even  if  permissible,  it  is  not  necessary 
to  resort  to  any  such  reason  to  sustain  such  legislation.  The  ground' 
upon  which  such  legislation  is  generally  upheld  is  that  it  is  a  sanitary 


MIXXESOTA.  109 

measure,  and  as  such  a  legitimate  exercise  of  the  police  power.  It  pro- 
ceeds upon  the  theory,  entertained  by  most  of  those  who  have  investi- 
gated the  subject,  that  the  physical,  intellectual  and  moral  welfare  of 
mankind  requires  a  periodical  day  of  rest  from  labor,  and  as  some  par- 
ticular day  must  be  fixed,  the  one  most  naturally  selected  is  that  which 
is  regarded  as  sacred  by  the  greatest  number  of  citizens.  and'Vhich  by 
custom  is  generally  devoted  to  religious  worship,  or  rest  and  recreation, 
as  this  causes  the  least  interference  with  business  or  existing  customs. 

"It  is  sometimes  said  that  mankind  will  seek  cessation  of  labor  at 
proper  times  by  the  natural  influences  of  the  law  of  self-preservation; 
also  that,  if  a  man  desires  to  engage  on  Sunday  in  any  kind  of  work  or 
business  which  does  not  interfere  with  the  rights  of  others,  he  has  an 
absolute  right  to  do  so,  and  to  choose  his  own  time  of  rest  as  he  sees 
fit.  The  answer  to  this  is  that  all  men  are  not  in  fact  independent  and 
at  liberty  to  work  when  they  choose.  Labor  is  in  a  great  degree  depen- 
dent upon  capital,  and,  unless  the  exercise  of  power  which  capital  af- 
fords is  restrained,  those  who  are  obliged  to  labor  will  not  possess  the 
freedom  for  rest  which  they  would  otherwise  exercise. 

"The  object  of  the  law  is  not  so  much  to  protect  those  who  can  rest 
at  pleasure  as  to  afford  rest  to  those  who  need  it,  and  who,  from  the 
conditions  of  society,  could  not  otherwise  obtain  it.  Moreover,  if  the 
law  was  not  obligatory  upon  all,  and  those  who  desired  to  do  so  were 
permitted  to  engage  in  their  usual  vocation  on  Sunday,  others  engaged 
in  the  same  kind  of  labor  or  business  might,  against  their  wishes,  be 
compelled  by  the  laws  of  competition  in  business  to  do  likewise."  (74 
Minn.,  376). 

The  effort  was  also  made  to  have  the  law  declared  unconsti- 
tutional because  it  specially  mentions  the  keeping  open  of  bar- 
ber shops  and  declares  it  not  to  be  a  work  of  necessity  or  char- 
ity.    The  contention  was  that  this  was  "class  legislation." 

The  Court  held  that  "under  the  original  statute,  what  were  works  of 
necessity  or  charity  was  largely  left  to  be  decided  as  a  question  of  fact, 
which  would  often  be  a  question  for  the  jury.  The  effect  of  the  amend- 
ment (of  1887)  was  to  make  this  a  question  of  law,  instead  of  fact,  as  to 
keeping  a  barber  shop  open.  In  the  exercise  of  the  police  power  in 
establishing  a  day  of  rest,  a  very  large  discretion  must  be  allowed  to 
the  legislature  in  determining  what  kinds  of  labor  or  business  should 
be  prohibited,  and  what  are  and  what  are  not  works  of  necesisty  of 
charity."     (74  Minn.  376). 

The  Supreme  ourt  of  IMinnesota,  in  1881,  gave  a  decision  as 
to  responsibility  for  accidents  occuring  on  the  Sabbath  in  con- 
nection with  acts  forbidden  by  the  statute.  A  young  man  was 
drowned  in  the  St.  Croix  River  while  engaged  on  an  excursion 
•on  the  Sabbath.  His  mother  entered  suit  to  recover  damages. 
The  defendant  contended  that  the  deceased  was  engaged  in  an 


no  MINNESOTA. 

unlawful  act,  and  damages  could  not  therefore    be    recovered. 

The  Court  said : 

"The  defendants'  liability  is  not  affected  by  the  fact  that  the  injury 
resulting  in  his  death  occurred  while  deceased  was  engaged  on  an  ex- 
cursion with  other  passengers  upon  defendants'  steamboat  in  violation 
of  the  Sunday  law."  "The  defendants  on  that  day  occupied  the  relation 
of  common  carriers  of  passengers,  and  their  general  obligation  to  use 
such  care  and  diligence  as  the  law  enjoins  is  not  limited  by  the  con- 
tract with  the  passengers,  nor  with  the  person  who  engaged  the  use 
of  the  boat  and  the  services  of  the  crew  for  that  day,  but  is  governed 
by  considerations  of  public  policy.  That  the  undertaking  was  unlaw- 
ful does  not  touch  the  question."  "The  suggestion  that  if  the  deceased 
had  not  joined  the  excursion  he  would  have  escaped,  may  perhaps 
serve  to  enforce  a  valuable  lesson  which  finds  a  sanction  in  law  and 
morals,  but  as  between  him  and  the  defendants  he  was  rightfully 
there."     (Opsahl  v.  Judd.  30  Minn.  126). 

Under  the  statute  as  it  was  prior  to  1886,  the  publishing  and 
selling  of  newspapers  on  the  Sabbath  was  illegal.  The  law  was 
amended  in  that  year  so  as  to  permit  their  sale  in  a  quiet  and 
orderly  way. 

In  the  case  of  Handy  v.  St.  Paul  Globe  Publishing  Com- 
pany in  which  action  was  brought  to  recover  damages  for  breach 
of  contract,  the  Court  said : 

"Unless  the  issuing  and  circulating  a  newspaper  on  Sunday  is^ 
within  the  meaning  of  the  statute,  a  work  of  necessity,  it  is  prohibited 
by  it  as  much  as  any  other  business  or  work.  The  newspaper  is  a  nec- 
essity of  modern  life  and  business,  but  it  does  not  follow  that  to  issue 
and  circulate  it  on  Sunday  is  a  necessity.  There  are  a  great  many 
other  kinds  of  business  just  as  necessary;  many,  indeed  most  kinds. 
of  manufactures  and  mercantile  business  are  indispensable  to  the  pres- 
ent needs  of  men,  but  no  one  would  say  that,  because  necessary  gen- 
erally, the  prosecution  of  such  business  on  Sunday  is  a  work  of  neces- 
sity."    (41  Minn.  188). 

In  Ward  v.  Ward,  the  court  gave  the  following  liberal  inter- 
pretation of  the  law  as  revised  in  1886. 

"There  is  no  inhibition  in  the  statute  upon  a  private  casual  sale." 
"The  statute  does  not  cover  or  affect  contracts  or  casual  sales  m?ide 
privately,  and  without  violating,  or  tending  to  produce  a  violation  of,, 
the  public  order  and  solemnity  of  the  day.  It  was  not  designed  to  for- 
bid business  transactions  which  in  no  manner  affect  the  rights  of  others 
who  are  properly  observing  the  day."     (75  Minn.  269). 

Some  of  the  exceptions  in  section  6185  introduce  an  element 
of  weakness  into  an  otherwise  excellent  law. 

The  opinion  rendered  in  State  v.  Petit  would  be  stronger  if^ 


MISSISSIPPI.  Ill 

instead  of  denying-  the  necessity  of  basing  the  constitutionality  of 
the  statute  on  the  proposition  that  Christianity  is  part  of  tlie  com- 
mon law,  this  ground  had  been  unquestioningly  set  forth.  The 
plea  for  the  law  on  the  laboring  man's  account  is  admirable.  The 
distinction  made  concerning  necessity  in  Handy  v.  S.  Paul  Globe 
show  great  clearness  of  perception  and  should  have  restrained  the 
legislature  from  legalize  Sunday  newspapers.     • 

MISSISSIPPI.     (1892.) 

"Crimes  and  misdemeanors,"  is  the  title  of  Chapter  29  of  the 
Code  of  Mississippi.  The  Sections  relating  to  the  first  day  of  the 
week  arc  entitled,  "The  Sabbath."     They  are  as  follows: 

"1291.  If  any  person  on  the  first  day  of  the  week,  commonly 
called  Sunday,  shall  himself  labor  at  his  own  or  any  other  trade,  call- 
ing or  business,  or  shall  employ  his  apprentice  or  servant  in  labor  or 
other  business,  except  it  be  in  the  ordinary  household  offices  of  daily 
necessity,  or  other  work  of  necessity  or  charity,  he  shall,  on  convic- 
tion, be  fined  not  more  than  twenty  dollars  for  every  offense,  deem- 
ing every  apprentice  or  servant  so  employed  as  constituting  a  distinct 
offense;  but  nothing  in  this  section  shall  apply  to  labor  on  railroads  or 
steamboats. 

"1292.  A  merchant,  shopkeeper,  or  other  person,  shall  not  keep 
open  store,  or  dispose  of  any  wares  or  merchandise,  goods  or  chattels, 
on  Sunday,  or  sell  or  barter  the  same;  and  every  person  so  offending 
shall,  on  conviction,  be  fined  not  more  than  twenty  dollars  for  every 
such  offense;  but  this  shall  not  apply  to  apothecaries  or  druggists  who. 
may  open  their  stores  for  the  sale  of  medicines. 

"1293.  If  any  person  shall  engage  in,  show  forth,  exhibit,  act,  rep- 
resent, perform,  or  cause  to  be  shown  forth,  acted,  repre- 
sented or  performed,  any  interludes,  farces  or  plays  of  any  kind,  or 
any  games,  tricks,  ball-playing  of  any  kind,  juggling  sleight  of  hand, 
or  feats  of  dexterity,  agility  of  body,  or  any  bear-baiting  or  any  bull- 
fighting, horse-racing,  or  cock-fighting,  or  any  such  like  show  or  exhi- 
bition whatsoever,  on  Sunday,  every  person  so  offending  shall  be  fined 
not  more  than  fifty  dollars. 

"1294.  If  any  person  shall  hunt  with  a  gun  or  with  dogs,  or  fish 
in  any  way  on  Sunday,  he  shall,  on  conviction,  be  fined  not  less  than 
five  dollars  nor  more  than  twenty  dollars. 

"1295.  It  shall  not  be  lawful  for  a  person  having  a  license  to  sell 
vinous  or  spirituous  liquors,  to  keep  open  the  dram-shop,  bar,  or  place 
where  such  liquors  are  sold,  or  to  sell  any  such  liquors,  on  the  first 
day  of  the  week,  commonly  called  Sunday;  and  a  person  so  offending 
shall  be  liable  to  a  fine  of  not  less  than  fifty  dollars  nor  more  than 


112  MISSISSIPPI. 

one  hundred  dollars  for  each  offense,  or  shall  be  imprisoned  therefor 
not  exceding  thirty  days  in  the  county  jail  or  both."     (pp.  373,  374). 

The  proper  construction  of  this  law  was  considered  in  the 
case  of  Miller  v.  Lynch.  (38  Miss.  344,  i860).  A  settlement 
between  these  two  men  of  certain  business  transactions  was  made 
on  the  Sabbath,  and  a  note  given  Miller  by  Lynch  for  a  balance 
due  him.  On  this  note  action  was  brought,  and  the  defense  was 
that  the  note  was  executed  on  Sabbath  and  therefore  void.  The 
case  was  carried  to  the  High  Court  of  Errors  and  Appeals.  In 
rendering  its  decision  this  court  called  attention  to  the  difference 
between  our  Statutes  and  that  of  England  29,  Car.  IL  Ch.  7,  Sec. 
2.  The  latter  says,  "No  tradesman,  artificer,  workman,  laborer, 
or  other  person  whatsoever,  shall  do  or  exercise  any  worldly 
labor,  business,  or  work  of  their  ordinary  callings  upon  the 
Lord's  day,  or  any  part  thereof  (works  of  necessity  or  charity 
■only  excepted).  But  the  Statute  of  Mississippi  forbids  labor  at 
his  own  or  any  other  trade  or  calling."  In  this  case  the  Court 
held  the  note  to  be  void. 

A  case  similar  to  this  was  that  of  Kountz  v.  Price  et  al.     The 
court  in  speaking  of  contracts  made  on  Sabbath  said : 

"Such  contracts  are  not  only  positively  prohibited  by  the  law  of 
the  land,  but  they  are  generally  admitted,  in  Christian  communitlea, 
to  be  in  violation  of  the  law  of  God.  Sound  morality  would,  therefore, 
appear  to  dictate  that  enactments  of  the  legislature,  founded,  as  this 
manifestly  is,  on  the  divine  law,  should  at  least  have  the  same  force, 
and  be  held  at  least  as  inviolable,  as  the  ordinary  statutes  prohibiting 
acts  merely  on  grounds  of  social  or  political  convenience."  "Contracts 
made  on  Sunday  are  void  because  they  are  made  on  that  day,  which 
Is  prohibited.  It  is  the  time  of  the  act  done,  that  vitiates  it."  (40 
Miss.  341,  1866.) 

In  the  case  of  Block  v.  McMurry,  the  court  defined  what  is 
signified  by  a  contract  made  on  Sabbath  being  void: 

"When  it  is  declared  that  the  Sunday  contract  of  sale  is  void,  the 
precise  extent  of  that  doctrine  practically  is,  that  the  courts  will  not 
give  the  remedies  of  the  law  to  assist  either  party  engaged  in  the  il- 
legal transaction.  They  will  not  help  the  seller  to  recover  the  price; 
nor  can  the  buyer  maintain  an  action  on  any  warranty,  deceit,  or  fraud 
in  the  sale."  "The  law  observes  a  strict  and  impartial  neutrality:  it 
will  not  interpose  at  the  solicitation  of  either  party,  but  says  to  both; 
'This  transaction  was  a  violation  of  the  statute;  both  of  you  are 
equally  guilty,  and  each  of  you  must  remain  in  the  position  in  which 
;you  have  placed  yourselves.'  "     (56  Miss.  217,  1878.) 


NEW  JERSEY.  113 

The  meaning  of  the  exception  to  the  law  was  passed  upon 
'by  the  Supreme  Court  in  the  case  of  Telegraph  Co.  v.  McLaurin 

in  1892. 

A  murder  had  been  committed  at  Cleveland,  Miss.,  on  Sabbath, 
and  a  telegram  to  McLaurin,  an  attorney  in  Vicksburgh,  was  placed 
in  the  hands  of  the  Telegraph  Company,  and  paid  for  the  day  of  the 
murder,  asking  him  to  go  to  Cleveland  to  defend  the  murderer  in  the 
preliminary  hearing.  The  message  was  not  sent  till  the  next  day,  and 
McLaurin  sued  the  company  for  damages  and  won  the  suit.  The  Su- 
preme Court  said  that  in  law  courts  the  word  necessity  is  not  regarded 
in  the  same  sense  as  it  is  in  the  Shorter  Catechism,  but  in  an  "en- 
larged meaning  of  necessity  so  as  to  embrace  social  necessity."  "It 
■may  be  that  the  true  view  is  that  if  a  telegraph  company  should,  in 
a  spirit  of  piety  or  regard  for  the  law,  refuse  to  receive  a  message 
for  transmission  on  Sunday,  and  was  sued  for  that,  and  invoked  the 
law  of  God  and  the  State  as  a  defense,  it  would  find  this  ample  pro- 
tection against  a  claim  for  damages;  but  that  the  piety  which  admits 
■of  open  offices  and  receipt  of  messages  and  pay  for  their  dispatch  on 
Sunday,  should  be  equal  to  the  duty  of  transmission  and  delivery,  as 
on  other  days." 

The  law  of  Mississippi,  were  it  not  for  the  exception  in  favor 
•of  railroads  and  steamboats,  would  be  one  of  the  best. 

NEW  JERSEY.     (1895.) 

"Vice  and  Immoradity"  is  the  title  of  the  Sections  of  the 
New  Jersey  Code  relating  to  the  Sabbath.  They  are  as  follows : 
''1.  That  no  travelling,  worldly  employment  or  business,  ordinary 
•or  servile  labor  or  work  either  upon  land  or  water  (works  of  necessity 
and  charity  excepted),  nor  shooting,  fishing  (not  including  fishing  with 
a  seine  or  net,  which  is  hereafter  provided  for),  sporting,  hunting,  gun- 
ning, racing,  or  frequenting  of  tippling-houses,  or  any  interludes  or 
plays,  dancing,  singing,  fiddling  or  other  music  for  the  saKe  of  merri- 
met,  nor  any  playing  at  football,  fives,  nine-pins,  bowls,  long-bullets  or 
•quoits,  nor  any  other  kind  of  playing,  sports,  pastimes,  or  diversions, 
shall  be  done,  performed,  used  or  practiced,  by  any  person  or  persons 
within  this  State,  on  the  Christian  Sabbath,  or  first  day  of  the  week, 
commonly  called  Sunday;  and  that  every  person,  being  of  the  age  of 
fourteen  years  or  upwards,  offending  in  the  premises,  shall  for  every 
such  offense,  forfeit  and  pay,  to  the  use  of  the  poor  of  the  township  in 
which  such  offense  shall  be  committed,  the  sum  of  one  dollar;  and 
that  no  person  shall  cry,  show  forth,  or  expose  to  sale,  any  wares, 
merchandise,  fruit,  herbs,  meat,  fish,  goods,  or  chattels,  upon  the  first 
lay  of  the  week,  commonly  called  Sunday,  or  sell  or  barter  the  same, 
lupon  pain  that  every  person  so  offending  shall  forfeit  and  pay  to  the 


1 14  ]S^EW  JERSEY. 

use  of  the  poor  of  the  township  where  such  offense  shall  be  committed,, 
the  sum  of  two  dollars, and  if  any  person  offending  in  the  prem- 
ises shall  be  thereof  convicted  before  any  justice  of  the  peace  for  the- 
county  where  the  offense  shall  be  committed,  upon  the  view 
of  the  said  justice,  or  confession  of  the  party  offending,  or 
proof  of  any  witness  or  witnesses  upon  oath  or  affirmation,  then 
the  said  justice  before  whom  such  conviction  shall  be  had,  shall  di- 
rect and  send  his  warrant,  under  his  hand  and  seal,  to  some  constable 
of  the  county  where  the  offense  shall  have  been  committed,  command- 
ing him  to  levy  the  said  forfeitures  or  penalties  by  distress  and  sale- 
of  the  goods  and  chattels  of  such  offenders,  and  to  pay  the  money 
therefrom  arising  to  the  overseers  of  the  poor  of  the  township  where- 
the  said  offense  or  offenses  shall  have  been  committed,  for  the  use  of 
the  poor  thereof;  and  in  case  no  such  distress  can  be  had,  then  every 
such  offender  shall,  by  a  warrant  under  the  hand  and  seal  of  the  said 
justice,  be  committed  to  the  common  jail  of  the  said  county,  or  to  the 
jail  of  any  city  or  town  corporate  within  the  same,  for  a  term  not 
exceeding  ten  days,  to  be  certainly  expressed  in  warrant;  and  further, 
that  if  any  person  shall  be  found  fishing,  sporting,  playing,  dancing, 
fiddling,  shooting,  hunting,  gunning,  travelling,  or  going  to  or  returning 
from  any  market  or  landing  with  carts,  wagons  or  sleds,  or  behaving 
in  a  disorderly  manner,  on  the  first  day  of  the  week,  called  Sun- 
day, it  shall  be  lawful  for  any  constable,  or  other  citizen, 
to  stop  every  person  so  offending,  and  to  detain  him  or  her  till  the 
next  day,  to  be  dealt  with  according  to  law:  provided  al- 
ways, that  no  person  going  to  or  returning  from  any  church  or  place 
of  worship,  within  the  distance  of  twenty  miles,  or  going  to  call  a 
physician,  surgeon,  or  midwife,  or  carrying  a  mail  to  or  from  any  post 
office,  or  going  express  by  order  of  any  public  officer,  shall  be  consid- 
ered as  travelling  within  the  meaning  of  this  act;  and  provided  also, 
that  nothing  in  this  act  contained  shall  be  construed  to  prohibit  the 
dressing  of  victuals  in  private  families  or  in  lodging  houses,  inns  and 
other  houses  of  entertainment  for  the  use  of  sojourners,  travelers,  or- 
strangers;  and  provided  further,  that  it  shall  and  may  be  lawful  for 
any  railroad  company  in  this  State  to  run  one  passenger  train  each 
way  over  their  roads  on  Sunday,  for  the  accommodation  of  citizens  of" 
this  State. 

"2.  No  person  shall  on  the  first  day  of  the  week,  called  Sunday, 
cast,  draw,  or  make  use  of  any  seine  or  net,  for  the  purpose  of  catch- 
ing fish  in  any  pond,  lake,  stream  or  river,  within  the  territorial  limits 
or  jurisdiction  of  this  State,  or  be  aiding  or  assisting  therein;  and' 
every  person  offending  in  the  premises  shall,  on  being  thereof  con- 
victed before  any  justice  of  the  peace  for  the  county  where  the  of- 
fense shall  be  committed,  upon  the  view  of  the  said  justice,  or  confes- 
sion of  the  party  offending,  or  proof  of  any  witness  or  witnesses  upoa 
oath  or  affirmation;   forfeit  and  pay  the  sum  of  fourteen  dollars  for 


NEW  JERSEY.  115 

every  such  offense."  (In  case  of  non-payment  goods  may  be  levied  on 
as  in  Section  1  and  if  there  are  no  goods  to  levy  on  the  offender  may- 
be committed  to  jail  till  the  fine  and  costs  are  paid.) 

'•3.  If  any  stage  or  stages  shall  be  driven  through  any  part  of 
this  State  on  the  first  day  of  the  week,  called  Sunday,  except  suffici- 
ent reason  shall  be  offered  to  show  that  it  be  done  in  cases  of  necessi- 
ty or  mercy,  or  in  case  of  cari-ying  the  mail  to  or  from  any  post-office, 
the  driver  or  drivers,  the  proprietor  or  proprietors  of  such  stage  or 
stages,  shall,  on  being  thereof  convicted  before  any  justice  of  the  peace 

for  the  county  where  the  offense  shall  be  committee forfeit  and 

pay  the  sum  of  eight  dollars  for  every  such  offense.  (In  case  of  non- 
payment the  provisions  of  Section  2  apply.) 

"4.  No  wagoner,  carter,  drayman,  drover,  butcher,  or  any  of  his 
or  their  servants,  shall  ply  or  travel  with  his  or  their  wagons,  carts; 
or  drays,  or  shall  load  or  unload  any  goods,  wares,  merchandise,  or 
produce,  or  drive  cattle,  sheep  or  swine,  in  any  part  of  this  State,  on 
the  first  day  of  the  week,  called  Sunday,  under  the  penalty  of  two- 
dollars  for  every  offense " 

5.  No  writ,  process,  warrant,  order,  judgment  or  decree,  shall  be 
served  on  Sabbath.     (Vol.  3,  pp.  3707-3709). 

In  1884,  it  was  enacted  that  "It  shall  be  lawful  for  any  court  or 
county  officer  to  publish  any  notice  or  advertisement,  now  required  by- 
law to  be  published  in  any  newspaper  in  this  State,  in  any  Sunday 
newspaper  which  has  been  published  in  such  county  for  the  period  of 
at  least  one  year." 

In  1881  an  act  was  passed  authorizing  boards  of  trustees,  directors, 
commissioners,  or  other  corporate  authorities  of  incorporated  camp- 
meeting  or  seaside  re.jorts  to  regulate  and  restrain  the  running  of 
trains  and  cars  of  all  kinds  within  their  premises,  and  also  to  regulate 
and  restrain  the  landing  of  persons  on  piers  within  their  premises. 

In  181 1  the  Supreme  Court  of  New  Jersey  said  that  it  was 
not  prepared  to  say  that  all  contracts  made  on  Siniday  are  void, 
(i  and  2.  N.  J.  526.)  In  1890  the  Court  of  Chancery  declared^ 
without  qualification,  such  contracts  to  be  void. 

In  1818,  in  the  case  of  Van  Riper  v.  Van  Riper,  which  in- 
volved the  question  of  the  rendering  of  a  verdict  by  a  lower 
court  on  the  Sal:)bath,  the  Supreme  Court  said: 

"When  the  jury  are  so  unfortunate  as  not  to  agree  until  they  en- 
croach on  the  Lord's  day,  it  is  a  work  of  necessity  then  to  receive 
their  verdict."  Justice  Rossell  in  concurring  said,  "Although  it  is  the- 
solemn  duty,  both  of  courts  and  juries,  so  to  arrange  their  business.. 
and  so  to  discharge  their  duties,  as  never  to  encroach  in  the  smallest- 
degree  on  the  Sabbath,  if  it  be  possible  to  avoid  it;  yet  where  the 
jury  have  been  compelled  to  reach  the  morning  of  that  day  before 
their  verdict  was  prepared,  I  see  no  mode  of  proceeding  so  proper  as 


^i6  NEW  JERSEY. 

to  receive  the  verdict,  dismiss  the  jury  and  parties,' and  at  such  future 
day  as  may  be  convenient  an'd  proper,  tal^e  the  subsequent  proceed- 
ings."    (1   South,  156.) 

When  the  time  for  the  performance  of  a  contract  falls  on  Sab- 
toath  a  compliance  on  the  following  day  will  be  a  sufficient  perform- 
ance.    (27  N.  J.  68.) 

In  1862  in  the  case  of  State  v.  Williams  the  Supreme  Court  said: 
•"The  legislation  of  this  State,  from  an  early  period,  has  been  directed 
to  the  object  of  preserving  to  its  citizens  a  quiet  day  of  rest  and  wor- 
ship upon  one  day  of  the  seven,  and  now  the  sale  of  spirituous  and 
fermented  liquors  on  Sunday  is  absolutely  prohibited,  even  to  those 
licensed  to  keep  an  inn.  Conduct,  therefore,  which  may  be  allow- 
•able  on  other  days,  if  permitted  on  Sunday,  may  make  a  house  dis- 
orderly; because  it  is  greatly  to  the  benefit  of  all  classes  of  the  com- 
munity, and  especially  of  those  earning  their  bread  by  daily  labor,  that 
it  should  be  set  apart  for  quiet  repose  and  religious  observances." 
<1  Vroom,  102,  1862). 

The  Court  of  Errors  and  Appeals  in  1889  in  a  case  involv- 
ing an  accident  to  a  woman  travelling  on  the  railroad  on  Sab- 
"bath,  said.: 

"Nor  was  the  plaintiff's  violation  of  the  Sunday  law,  in  a  legal 
sense,  the  cause  of  her  injury."  "The  rule  may  be  considered  as  set- 
tled, that  a  railroad  company,  having  accepted  a  passenger,  is  under 
an  obligation  to  take  due  and  reasonable  care  for  his  safety,  and  that 
'that  obligation  arises  by  implication  of  law  independent  of  contract." 
<23  Vroom.  169.) 

To  show  how  common  it  has  been  for  Sabbath  breakers  to 
try  to  avoid  duties  involved  in  contracts  made  on  the  Sabbath  by 
pleading  the  prohibitions  of  the  law,  it  may  be  noted  that  even 
after  the  passage  of  the  law  allowing  railroads  to  run  one  passen- 
ger train  each  way  on  Sabbath,  railroad  companies  tried  escape 
liability  for  damages  in  case  of  accidents,  by  setting  up  the  plea 
that  the  people  injured  were  travelling  in  violation  of  law.  The 
•courts,  however,  allowed  damages.     (46  N.  J-  /•) 

In  1901  the  Supreme  Court  held  that  "every  transaction  which,  if 
performed  on  a  week  day  would  be  enforceable  in  a  court  of  justice, 
if  performed  on  Sabbath  is  void,  and  cannot  be  validated  by  ratifi- 
'cation;  but  an  express  promise  afterwards  made  on  the  basis  of  the 
"consideration  emanating  from  the  tainted  contract  is  binding."  (66 
.^'.  J.  367.) 

The  exception  made  to  the  law  in  favor  of  legal  notices  in 
'Sunday  papers  is  the  chief  element  of  weakness  in  this  otherwise 
^excellent  statute.     The  opinions  of  the  courts  do  not  take  up  the 


NEW  YORK.  117- 

constitntional  grounds  of  the  law,  but  the  interpretations  giver* 
are  in  the  main  to  be  commended. 

NEW  YORK.    (1892.) 

The  Penal  Code  of  the  State  of  New  York,  Title  X.,  Chapter 
1.,  treating  of  crimes  against  Religious  Liberty  and  Conscience,, 
contains  the  following  summary  of  the  Sabbath  Laws  of  the 
State : 

"259.  The  Sabbath.— The  first  day  of  the  week  being  by  general 
consent  set  apart  for  rest  and  religious  uses,  the  law  prohibits  the 
doing  on  that  day  of  certain  acts  hereinafter  specified,  which  are  seri- 
ous interruptions  of  the  repose  and  religious  liberty  of  the  community. 

"260.  Sabbath  breaking.— A  violation  of  the  foregoing  prohibition 
is  Sabbath-breaking. 

"263.  Servile  labor. — All  labor  on  Sunday  is  prohibited,  excepting 
the  works  of  necessity  or  charity.  In  works  of  necessity  or  charity 
is  included  whatever  is  needful  during  the  day  for  the  good  order^ 
health  or  comfort  of  the  community. 

"264.  Persons  observing  another  day  as  a  Sabbath. — It  is  a  suffi- 
cient defense  to  a  prosecution  for  work  or  labor  on  the  first  day  of 
the  week,  that  the  defendant  uniformly  keeps  another  day  of  the  week, 
as  holy  time,  and  does  not  labor  on  that  day,  and  that  the  labor  com- 
plained of  was  done  in  such  manner  as  not  to  interrupt  or  disturb  other 
persons  in  observing  the  first  day  of  the  week  as  holy  time. 

"265. — Public  sports.. — All  shooting,  hunting,  fishing,  playing,  horse- 
racing,  gaming  or  other  public  sports,  exercises  or  shows,  upon  the- 
first  day  of  the  week,  and  all  noise  disturbing  the  peace  of  the  day,, 
are  prohibited. 

"266.  Trades,  maufacturers  and  mechanical  employments. — All) 
trades,  manufacturers,  agricultural  or  mechanical  employments  upott 
the  first  day  of  the  week  are  prohibited,  except  that  when  the  same 
are  works  of  necessity  they  may  be  performed  on  that  day  in  their 
usual  and  orderly  manner,  so  as  not  to  interfere  with  the  repose  and 
religious  liberty  of  the  community 

"267.  Public  traffic. — All  manner  of  public  selling  or  offering  for 
sale  of  any  property  upon  Sunday  is  prohibited,  except  that  articles  of 
food  may  be  sold  and  supplied  at  any  time  before  ten  o'clock  in  the 
morning,  and  except  also  that  meals  may  be  sold  to  be  eaten  on  the 
premises  where  sold  or  served  elsewhere  by  caterers;  and  prepared 
tobacco  in  places  other  than  where  spirituous  or  malt  liquors  are  kept 
or  offered  for  sale,  and  fruit,  confectionery,  newspapers,  drugs,  medi- 
cines, and  surgical  appliances  may  be  sold  in  a  quiet  and  orderly  man- 
ner at  any  time  of  the  day. 


ii8  NEW  YORK. 

"268.  Serving  process  on  Sunday  prohibited. — All  serving  of  legal 
process  of  any  kind  whatever,  upon  the  first  day  of  the  week,  is  pro- 
hibited, except  in  cases  of  breach  of  the  peace,  or  apprehended  breach 
of  the  peace,  or  when  sued  out  for  the  apprehension  of  a  person 
charged  with  crime,  or  except  where  such  service  is  speci- 
ally authorized  by  statute.  Service  of  any  process  upon  said  day  ex- 
cept as  herein  permitted  is  absolutely  void  for  any  and  every  purpose 
whatever. 

"269.  Sabbath-breaking.— Sabbath-breaking  is  a  misdemeanor, 
punishable  by  a  fine  not  less  than  five  dollars  and  not  more  than  ten 
•dollars,  or  by  imprisonment  in  a  county  jail  not  exceeding  five  days, 
■or  by  both,  but  for  a  second  or  other  offense,  where  the  party  shall 
liave  been  previously  convicted,  it  shall  be  punishable  by  a  fine  not 
less  than  ten  dollars  and  not  more  than  twenty  dollars,  and  by  im- 
prisonment in  a  county  jail  not  less  than  five  nor  more  than  twenty 
■days. 

"270.  Forfeiture  of  commodities  exposed  for  sale. — In  addition  to 
the  penalty  imposed  by  the  last  section,  all  property  and  commodities 
•exposed  for  sale  on  the  first  day  of  the  week  in  violation  of  the  pro- 
"visions  of  this  chapter  shall  be  forfeited.  Upon  conviction  of  the  of- 
fender by  the  justice  of  a  county,  or  by  a  mayor,  recorder  or  alderman 
of  a  city,  such  officer  shall  issue  a  warrant  for  the  seizure  of  the  for- 
feited articles,  which,  when  seized,  shall  be  sold  on  one  day's  notice, 
and  the  proceeds  paid  to  the  overseers  of  the  poor,  for  the  use  of 
the  poor  of  the  town  or  city. 

"271.  Remedy  for  maliciously  serving  process. — Whoever  malici- 
'Ously  procures  any  process  in  a  civil  action  to  be  served  on  Saturday, 
tupon  any  person  who  keeps  Saturday  as  holy  time,  and  does  not  labor 
•on  that  day,  or  serves  upon  him  any  process  returnable  on  that  day, 
■or  maliciously  procures  any  civil  action  to  which  such  person  is  a 
I)arty  to  be  adjourned  to  that  day  for  trial,  is  guilty  of  a  misdemeanor. 

"272.  Compelling  adoption  of  a  form  of  belief. — An  attempt  by 
■means  of  threats  or  violence,  to  compel  any  person  to  adopt,  practice 
lOr  profess  a  particular  form  of  religious  belief,  is  a  misdemeanor. 

"273.  Preventing  performance  of  religious  acts. — A  person  who 
'Willfully  prevents,  by  threats  or  violence,  another  person  from  per- 
forming any  lawful  act  enjoined  upon  or  recommended  to  such  person 
l»y  the  religion  which  he  professes,  is  guilty  of  a  misdemeanor. 

"274.  Disturbing  religious  meetings. — A  person  wno  willfully  dis- 
turbs, interrupts  or  disquiets  any  assemblage  of  people  met  for  relig- 
ious worship,  by  any  of  the  acts  enumerated  in  the  next  section,  is 
guilty  of  a  misdemeanor. 

"275.  Id;  definition  of  the  offense. — The  following  acts,  or  any  of 
ihem,  constitute  disturbance  of  a  religious  meeting: 

"1.  Uttering  any  profane  discourse,  committing  any  rude  or  in- 
decent act,  or  making  any  unnecessary  noise,  either  within   the   place 


NEW  YORK.  119 

where  such  meeting  is  held,  or  so  near  it  as  to  disturb  the  order  and 
•solemnity  of  the  meeting; 

"2.  Engaging  in,  or  promoting,  within  two  miles  of  the  place 
where  a  religious  meeting  is  held,  any  racing  of  animals  or  gaming  of 
-any  description; 

"3.  Obstructing  in  any  manner,  without  authority  of  law,  within 
the  like  distance,  free  passage  along  a  highway  to  the  place  of  such 
meeting. 

"276.  Processions  and  parades.— Punishment.— All  processions  and 
parades  on  Sunday  in  any  city,  excepting  only  funeral  processions  for 
the  actual  burial  of  the  dead,  and  processions  to  and  from  a  place  of 
worship  in  connection  with  a  religious  service  there  celebrated,  are 
forbidden;  and  in  such  excepted  cases  there  shall  be  no  music,  fire- 
works, discharge  of  cannon  or  fire-arms,  or  other  disturbing  noise.  At 
a  military  funeral,  and  at  the  burial  of  a  national  guardsman  or  of  a 
deceased  member  of  an  association  of  veteran  soldiers,  or  of  a  dis- 
banded militia  regiment,  music  may  be  played  while  escorting  the 
body,  but  not  within  one  block  of  a  place  of  worship  where  service  is 
"then  celebrated. 

"A  person  willfully  violating  any  provision  of  this  section  is  pun- 
ishable by  fine  not  exceeding  twenty  dollars,  or  imprisonment  not  ex- 
ceeding ten  days,  or  by  both. 

"277.  Theatrical  and  other  performances. — The  'performance  of 
any  tragedy,  comedy,  opera,  ballet,  farce,  negro  minstrelsy,  negro  or 
other  dancing,  trial  of  strength,  or  any  part  or  parts  therein,  or  any 
circus,  equestrian,  or  dramatic  performance  or  exercise,  or  any  per- 
formance or  exercise  of  jugglers,  acrobats,  club  performances  or  rope 
■dancers,  on  the  first-  day  of  the  week,  is  forbidden ;  and  every  person 
aiding  in  such  exhibition,  performance  or  exercise,  by  advertisement, 
posting  or  otherwise,  and  every  owner  or  lessee  of  any  garden,  build- 
ing or  other  room,  place  or  structure,  who  leases  or  lets  the  same 
for  the  purpose  of  any  such  exhibition  or  performance  or  exercise,  or 
who  assents  to  the  use  of  the  same  for  any  such  purpose,  if  it  be  so 
^sed,  is  guilty  of  a  misdemeanor. 

"In  addition  to  the  punishment  therefor  provided  by  statute,  every 
person  violating  this  section  is  subject  to  a  penalty  of  five  hundred 
dollars;  which  penalty  "The  Society  for  the  Reformation  of  Juvenile 
Delinquents"  in  the  city  of  New  York,  for  the  use  of  that  society,  and 
the  overseers  of  the  poor  in  any  other  city  or  town,  for  the  use  of  the 
poor,  are  authorized,  in  the  name  of  the  people  of  this  State,  to  re- 
-cover. Besides  this  penalty,  every  such  exhibition,  performance  or  ex- 
ercise, of  itself,  annuls  any  license  which  may  have  been  previously 
-obtained  by  the  manager,  superintendent,  agent,  owner  or  lessee,  using 
■or  letting  such  building,  garden,  rooms,  place  or  other  structure,  or 
•consenting  to  such  exhibition,  performance  or  exercise,  (pp.  70-74.) 
"Sunday  papers. — 1.     All  contracts  or  agreements  of  any  nature 


I20  NEW  YORK. 

with  the  publishers  or  proprietors  of  any  paper  dated,  published  or- 
issued  on  the  first  day  of  the  week  shall  be  as  valid,  legal  and  binding,, 
as  contracts  made  with  newspapers  dated  or  published  on  any  other 
day  of  the  week.     (General  Laws,  Vol.  3,  p.  384S.) 

"Barbering  prohibited;  exceptions;  penalties. — 1.  Any  person  who 
carries  on  or  engages  in  the  business  of  shaving,  hair  cutting  or  other 
work  of  a  barber  on  the  first  day  of  the  week,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  fined  not  more  than 
five  dollars;  and  upon  a  second  conviction  for  a  like  offense  shall  be 
fined  not  less  than  ten  dollars  and  not  more  than  twenty-five  dollars,, 
or  be  imprisoned  in  the  county  jail  for  a  period  of  not  less  than  ten 
days,  nor  more  than  twenty-five  days,  or  be  punishable  by  both  such; 
fine  and  such  imprisonment  at  the  discretion  of  the  court  or  magis- 
trate; provided,  that  in  the  City  of  New  York,  and  the  village  of  Sara- 
toga Springs,  barber  shops  or  other  places  where  a  barber  is  engaged; 
in  shaving,  hair  cutting,  or  other  work  of  a  barber,  may  be  kept  open, 
and  the  work  of  a  barber  may  be  performed  therein  until  one  o'clock 
of  the  afternoon  of  the  first  day  of  the  week.  (General  Laws,  Vol.  3,. 
pp.  3848,  3849.) 

Liquor  may  not  be  sold  on  the  Sabbath,  except  by  druggists  on 
physicians'  prescriptions  and  by  hotel  keepers  to  guests. 

Private  contracts  made  on  the  Sabbath  are  valid.  (Batsford  v. 
Every,  44  Barb.  618). 

One  of  the  oldest  cases  in  which  the  constittitionality  of  this 
and  other  moral  statutes  was  upheld  was  the  famous  blasphemy 
case  of  the  People  against  Ruggles.  Justice  Kent  delivered  the 
opinion  of  the  court. 

It  was  contended  by  Cotmsel  for  Ruggles  that  the  offense 
charged  is  not  punishable  by  the  law  of  New  York,  because 
"Christianity  did  not  make  a  part  of  the  common  law  of  this 
State."     The  Court  said  : 

"Christianity,  in  its  enlarged  sense,  as  a  religion  revealed  and 
taught  in  the  Bible,  is  not  unknown  to  our  law.  The  statute  for  pre- 
venting immorality  consecrates  the  first  day  of  the  week,  as  holy  time,, 
and  considers  the  violation  of  it  immoral.  This  was  only  the  continu- 
ation, in  substance,  of  a  law  of  the  colony  which  declared,  that  the  pro- 
fanation of  the  Lord's  day  was  'the  great  scandal  of  the  Christian 
faith.'  "     (8  Johnston  290,  1811.) 

The  Superior  Court  in  1859,  called  attention  to  the  fact  that  the 
statute  "explicitly  recognizes  the  first  day  of  the  week  as  'holy  time.'  " 
The  Court  also  said  that  the  Scripture  passages  found  in  Mark  16:2; 
Matthew  28:1;  Luke  24:1;  and  John  21,  with  the  phrase,  the  Lord's 
Day,  used  in  Rev.  1:10;  the  practice  of  assembling  of  Christians  re- 
corded in  1  Cor.  16:2,  and  the  usage  of  Christians  traced  back  to 
remote   antiquity,    "Constitute    an    argument   of   irresistible   force,   to- 


NEW  YORK.  121 

prove  that  the  Jewish  Sabbath  was  superseded;  that  the  day  of  the 
resurrection  was  substituted,  and  that  the  great  injunction  of  the  an- 
cient law  to  lieep  it  holy,  was  applicable  to  this  new  day  of  a  greater 
deliverance.  Ecclesiastical  history  is  uniform  to  show  that  its  observ- 
ance as  a  rule  for  all  who  profess  themselves  Christians,  has  been  rec- 
ognized and  transmitted  by  the  practice  of  apostles,  the  obedience  of 
the  disciples,  the  recognition  of  canons,  and  the  edicts  of  emperors, 
monarchs  and  States,  from  the  earliest  rise  of  Christianity  through 
all  the  ages  of  its  progress."  (4  Bosworth,  298,  Campbell  v.  The  In- 
ternational Life  Assurance  Society  of  London.) 

In  i860,  in  the  New  York  Superior  Court  the  constitution- 
ality of  the  act  prohibiting  certain  exhibitions  and  plays  within 
the  city  and  county  of  New  York,  on  Sabbath,  was  sustained. 
The  Court  said : 

"The  learned  counsel  of  the  plaintiffs  has  entered  largely  into  the 
question  of  the  origin  and  sanction  of  the  Christian  Sabbath. 
It  may  not  be  essential,  but  it  is  far  from  being  irrevelant,  to 
the  decision  of  the  pi'esent  case,  to  sustain  the  divine  au- 
thority of  the  institution."  The  restriction  placed  upon  the  use  on  the 
Lord's  day,  of  property  of  all  kinds,  including  cattle  in  agricultural 
labor,  the  selling  of  merchandise,  and  of  premises  for  certain  specific 
purposes,  is  held  not  to  be  in  violation  of  the  constitution.  "The  re- 
striction in  each  instance  rests  upon  the  principle  of  the  preserva- 
tion of  good  order,  and  the  public  morality  and  peace."  (20  Howard's- 
Practice  Reports,  76,  1860.) 

A  most  important  decision  was  rendered  by  the  Supreme 
Court  of  New  York  at  the  February  term  of  1861,  in  the  case  of 
Gustav  Lindenmuller  v.  the  People,  (t^t.  Barb.  548-578.)  In 
this  opinion  the  entire  question  of  Sabbath  legislation  was  con- 
sidered in  a  most  thorough  manner,  and  it  has  ever  since  been 
regarded  as  settling  most  of  the  disputed  points.  It  is  con- 
stantly referred  to  and  quoted  by  courts  of  all  grades  both  in 
New  York  and  in  other  States.  It  will  be  in  place  therefore  to 
make  liberal  extracts  from  it  for  the  purpose  of  showing  the  basis 
of  Sabbath  legislation  in  New  York  and  other  States  which  be- 
long to  this  division.     The  statement  of  the  case  is  as  follows : 

On  the  5th  day  of  July,  1860,  the  defendant,  Mr.  Lindenmuller,  was 
indicted  in  the  Court  of  Oyer  and  Terminer  of  the  City  and  County 
of  New  York  for  an  alleged  misdemeanor  in  giving  theatrical  exhibi- 
tions on  Sabbath.  The  exhibitions  were  given  in  premises  hired  for 
the  purpose  "of  giving  dramatic  entertainments  therein  daily,  including 
Sundays,"  "During  the  week  the  receipts  were  not  suflBcient  to  pay 
the  expenses,  but  on  Sunday  largely  exceeded  the  expenses."  "The 
counsel  for  the  defendant  asked  the  court  to  direct  the  jury  to  acquit 


J 22  NEW  YORK. 

the  defendant,  on  the  ground  that  the  act  under  which  the  indictment 
was  framed  was  unconstitutional  and  void.  The  Court  refused  so  to 
direct  the  jury,  but  on  the  contrary  charged  the  jury  that  said  act 
was  constitutional  and  valid.  To  which  charge  the  counsel  for  the  de- 
fendant excepted.     The  jury  rendered  a  verdict  of  "Guilty." 

Before  the  Supreme  Court  the  counsel  for  the  plaintiff  in  error  en- 
deavored to  show  the  unconstitutionality  of  the  Sabbath  law  on  the 
following  grounds:  (1)  "The  law  in  question  is  in  violation  of  sec- 
tion 6,  article  1  of  the  constitution  of  this  State,  which  provides  that 
no  person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law."  (2)  "The  statute  in  question  is  in  violation  of  Sec- 
tion 10  of  Article  1,  of  the  Constitution  of  the  United  States,  which 
provides  that  no  State  shall  pass  any  law  impairing  the  obligation  of 
contracts."  (3)  "The  statute  in  question  is  not  valid  on  the  ground 
that  it  is  a  police  regulation."  (4)  This  statute  is  unconstitutional, 
because  it  is  in  violation  of  Article  1,  Section  3,  of  the  Constitution 
of  the  State  of  New  York,  which  provides  that  'The  free  exercise  and 
enjoyment  of  religious  profession  and  worship,  without  discrimination 
or  preference,  shall  for  ever  be  allowed  in  this  State  to  all  mankind.' 
'The  effect  of  this  statute  is  to  discriminate  in  favor  of  those  who  keep 
the  first,  in  contradistinction  to  those  who  keep  the  seventh  day  of 
the  week.  This  statute  cannot  be  successfully  maintained  on  the 
ground  that  Christianity  is  a  part  of  the  common  law  of  the  State, 
and  therefore  the  Legislature  has  a  right  to  enact  laws  for  its  due 
observance.  Christianity  is  not  a  part  of  the  common  law  of  this 
country,  there  being  here  no  union  of  Church  and  State  as  in  England.' 

The  extracts  are  stifficient  to  show  on  what  grounds  it  v/as 
•sotight  to  have  the  law  declared  nnconstittttional. 

Judge  Allen  in  delivering  the  opinion  of  the  court  said : 
"The  constitutionality  of  the  law  under  which  Lindenmuller  was 
indicted  and  convicted  does  not  depend  upon  the  question  whether  or 
not  Christianity  is  a  part  of  the  common  law  of  this  State.  Were  that 
the  only  question  involved,  it  would  not  be  difficult  to  show  that  it 
was  so,  in  a  qualified  sense — not  to  the  extent  that  would  authorize  a 
compulsory  conformity  in  faith  and  practice,  to  the  creed  and  formula 
of  worship  of  any  sect  or  denomination,  or  even  in  those  matters  of 
doctrine  and  worship  common  to  all  denominations  styling  themselves 
Christian,  but  to  the  extent  that  entitles  the  Christian  religion  and  its 
ordinances  to^respect  and  protection,  as  the  acknowledged  religion  of 
the  people,  /individual  consciences  may  not  be  enforced;  but  men  of 
every  opinion  and  creed  may  be  restrained  from  acts  which  interfere 
with  Christian  worship,  and  which  tend  to  revile  religion  and  bring  it 
into  contempt./The  belief  of  no  man  can  be  constrained,  and  the  proper 
•expression  of  religious  belief  is  guaranteed  to  all;  but  this  right,  like 
every  other  right,  must  be  exercised  with  strict  regard  to  the  equal 


NEW  YORK.  123 

rights  of  others;  and  when  religious  belief  or  unbelief  leads  to  acts 
which  interfere  with  religious  worship,  and  rights  of  conscience  of 
those  who  represent  the  religion  of  the  country,  as  established  not 
by  law,  but  by  the  consent  and  usage  of  the  community,  and  existing 
before  the  organization  of  the  governments,  their  acts  may  be  re- 
strained by  legislation,  even  if  they  are  not  indictable  at  common  law. 
Christianity  is  not  the  legal  religion  of  the  State,  as  established  by 
law.  If  it  were,  it  would  be  a  civil  or  political  institution,  which  it 
is  not;  but  this  is  not  inconsistent  with  the  idea  that  it  is  in  fact,  and 
ever  has  been,  the  religion  of  the  people.  This  fact  is  every  where 
prominent  in  all  our  civil  and  political  history,  and  has  been,  from 
the  first,  recognized  and  acted  upon  by  the  people,  as  well  as  by  Con- 
stitutional Conventions." 

The  judge  next  stated  that  Christianity  is  part  of  the  common 
law  of  England,  and  that  that  common  law,  as  it  was  in  force  when 
the  constitution  of  1776-1777  was  adopted,  continued  to  be  the  common 
law  of  the  State,  except  such  parts  of  it  as  were  repugnant  to  the  con- 
stitution. That  the  Sabbath  law  is  not  repugnant  to  that  constitution 
or  any  that  has  been  adopted  since,  he  proceeded  to  show:  "It  would 
be  strange  that  a  people.  Christian  in  doctrine  and  worship,  many  of 
whom  or  whose  forefathers  had  sought  these  shores  for  the  privilege 
of  worshipping  God  in  simplicity  and  purity  of  faith,  and  who  regarded 
religion  as  the  basis  of  their  civil  liberty,  and  the  foundation  of 
their  rights,  should,  in  their  zeal  to  secure  to  all  the  freedom  of  con- 
science which  they  valued  so  highly,  solemnly  repudiate  and  put  be- 
yond the  pale  of  the  law,  the  religion  which  was  dear  to  them  as  life, 
and  dethrone  the  God  who,  they  openly  and  avowedly  professed  to  be- 
lieve, had  been  their  protector  and  guide  as  a  people." 

The  judge  then  states  that  the  Declaration  of  Independence  was 
prefixed  as  a  part  of  the  Constitution  of  1777,  and  that  in  that  docu- 
ment there  is  an  appeal  "to  the  Supreme  Judge  of  the  World,"  and 
an  expression  of  "firm  reliance  on  the  protection  of  Divine  Provi- 
dence." Every  constitution  of  the  State  since  framed  contains  an  ac- 
knowledgment of  Almighty  God.  The  opinion  then  proceeds:  "The 
several  constitutional  conventions  also  recognize  the  Christian  relig- 
ion as  the  religion  of  the  State,  by  opening  their  daily  sessions  with 
prayer,  by  themselves  observing  the  Christian  Sabbath,  and  by  except- 
ing that  day  from  the  time  allowed  to  the  governor  for  returning  bills 
to  the  Legislature.  .  .  .  They  did,  therefore,  prohibit  the  establish- 
ment of  a  State  religion,  with  its  enabling  and  disabling  statutes,  its 
test  oaths  and  ecclesiastical  courts,  and  all  the  pains  and  penalties  of 
nonconformity,  which  are  only  snares  to  the  conscience,  and  every 
man  is  left  free  to  worship  God  according  to  the  dictates  of  his  own 
conscience,  or  not  to  worship  him  at  all  as  he  pleases.  But 
they  did  not  suppose  they  had  abolished  the  Sabbath  as  a 
day  of  rest  for  all,  and  of  Christian  worship  for  those  who  were  dis- 


124  ^EW  YORK. 

posed  to  engage  in  it,  or  had  deprived  themselves  of  the  power  to  pro- 
tect their  God  from  blasphemy  and  revilings,  or  their  religious  wor- 
ship from  unseemly  interruptions.  Compulsory  worship  of  God  in 
any  form  is  prohibited,  and  every  man's  opinion  on  matters  of  relig- 
ion, as  in  other  matters,  is  beyond  the  reach  of  law.  No  man  can  be 
compelled  to  perform  any  act  as  a  duty  to  God;  but  this  liberty  of 
conscience  in  matters  of  faith  and  practice  is  entirely  consistent  with 
the  existence,  in  fact,  of  the  Christian  religion,  entitled  to  and  enjoy- 
ing the  protection  of  law  as  the  I'eligion  of  the  people  of  the  State, 
and  as  furnishing  the  best  sanctions  of  moral  and  social  obligations. 
The  public  peace  and  public  welfare  are  greatly  dependent  upon  the 
protection  of  the  religion  of  the  country,  and  the  preventing  or  pun- 
ishing of  offenses  against  it,  and  acts  wantonly  committed  subversive- 
of  it." 

He  then  shows  that  previous  to  the  Constitutional  Convention  of 
1821,  courts  had  declared  Christianity  to  be  part  of  the  common  law. 
An  amendment  was  proposed  to  the  Constitution  of  the  State  "to  the 
effect  that  the  judiciary  should  not  declare  any  particular  religion  ta 
be  the  law  of  the  land."  This  amendment  was  rejected,  the  majority 
holding  "that  the  Christian  religion  was  engrafted  upon  the  law,  and 
entitled  to  protection  as  the  basis  of  our  morals  and  the  strength  of 
our  government.  "Within  the  principles  of  the  decision  of  the  Peo- 
ple V.  Ruggles,  as  thus  interpreted  and  approved  and  made  a  part  of 
the  fundamental  law  of  the  land  by  the  rejection  of  the  proposed 
amendment,  every  act  done  maliciously,  tending  to  bring  religion  into 
contempt,  may  be  punished  at  common  law,  and  the  Christian  Sab- 
bath, as  one  of  the  institutions  of  that  religion,  may  be  protected  from 
desecration  by  such  laws  as  the  legislature,  in  their  wisdom,  may 
deem  necessary  to  secure  to  the  community  the  privilege  of  undis- 
turbed worship,  and  to  the  day  itself  that  outward  respect  and  ob- 
servance which  maj  be  deemed  essential  to  the  peace  and  good  order 
of  society,  and  to  preserve  religion  and  its  ordinances  from  open  revil- 
ing and  contempt — and  this  not  as  a  duty  to  God,  but  as  a  duty  to  so- 
ciety and  to  the  State. 

"But  as  a  civil  and  political  institution,  the  establishment  and 
regulation  of  a  Sabbath  is  within  the  just  powers  of  the  civil  govern- 
ment. With  us,  the  Sabbath,  as  a  civil  institution,  is  older  than  the 
government.  The  framers  of  the  first  Constitution  found  it  in  exist- 
ence; they  recognized  it  in  their  acts,  and  they,  did  not  abolish  it 
or  alter  it,  or  lessen  its  sanctions  or  the  obligations  of  the  people  ta 
observe  it."  But  if  this  had  not  been  so,  the  civil  government  might 
have  established  it.  It  is  a  law  of  our  nature  that  one  day  in  seven 
must  be  observed  as  a  day  of  relaxation  and  refreshment,  if  not  for 

public  worship The  Christian  Sabbath  is  then  one  of  the  civil 

institutions  of  the  State,  and  to  which  the  business  and  duties  of  life 
are,  by  the  common  law,  m.ade  to  conform  and  adapt  themselves.   The 


NEW  YORK.  125 

.•same  cannot  be  said  of  the  Jewish  Sabbath,  or  the  day  observed  by 
the  followers  of  any  other  religion."  "The  existence  of  the  Sabbath 
•day  as  a  civil  institution  being  conceded,  as  it  must  be,  the  right  of 
■the  legislature  to  control  and  regulate  it  and  its  observances  is  a 
necessary  sequence." 

"The  act  complained  of  here  compels  no  religious  observance,  and 
•offenses  against  it  are  punishable  not  as  sins  against  God,  but  as  in- 
jurious to  and  having  a  malignant  influence  on  society." 

It  should  be  stated  that  the  Court  of  Appeals,  not  the  Su- 
preme Court,  is  the  highest  court  in  New  York,  but  the  decision 
in  this  case  was  expressly  approved  in  Neuendorff  v.  Duryea  (69 
N.  Y.  557),  and  was  referred  to  as  one  "which  has  never  been 
cjuestioned  in  a  court  of  higher  or  equal  authority,"  and  "as  de- 
claring the  law  of  this  State."  In  the  case  of  the  People  v.  Hav- 
nor  (149,  N.  Y.  195,  1896),  it  was  referred  to  as  the  leading  case 
upon  the  subject  in  which  Judge  Allen  discussed  the  common 
law  as  well  as  legislation  affecting  the  Sabbath  with  great  force 
and  clearness. 

In  People  v.  Dennin,  the  Supreme  Court  gave  an  interpretation  of 
the  law  which  was  afterwards  controverted  by  the  Court  of  Appeals. 
Dennin  had  been  convicted  of  Sabbath-breaking  by  the  Court  of  Ses- 
sions of  Queens  County.  The  act  charged  was  playing  ball  on  private 
grounds.  The  case  was  appealed  to  the  Supreme  Court.  This  Court 
held  that  Section  265  prohibiting  "all  shooting,  hunting,  fishing, 
playing,  etc.,  upon  the  first  day  of- the  week,"  is  to  be  interpreted  by 
Section  259,  which  declares  that  the  law  prohibits  the  doing  on  that 
day  of  acts  "which  are  serious  interruptions  of  the  repose  and  re- 
ligious liberty  of  the  community.  It  was  further  declared  that  "The 
essential  character  of  the  crime  was  wanting.  There  was  nothing  to 
disturb  the  repose  of  the  community."     (35  Hun.  327,  1885.) 

In  People  v.  Mosos  the  Court  of  Appeals,  the  highest  court  in  tW 
State,  afllrmed  the  constitutionality  of  the  law.  Moses  had  been  con- 
victed of  Sabbath-breaking  in  a  court  held  by  a  Justice  of  the  Peacft 
in  Orange  County.  The  conviction  was  affirmed  upon  appeal  to  the 
Court  of  Sessions  of  that  county.  Appeal  was  taken  to  the  Supreme 
Court,  which  also  affirmed  the  conviction.  Moses  next  appealed  to  the 
Court  of  Appeals.  The  act  claimed  to  be  a  violation  of  the  law  was 
fishing  from  a  boat  in  a  pond  in  view  of  the  public  highways  and 
private  residences.  His  plea  was  that  the  pond  was  private  property, 
belonging  to  a  club  of  which  he  was  a  member,  and  that  his  acts  were 
not,  therefore,  public,  and  did  not  constitute  "serious  interruption  of 
the  repose  and  religious  liberty  of  the  community." 

'"he  court,  in  upholding  the  law,  said,  "The  Christian  Sabbath  is 
•one  of  the  civil  institutions  of  the  State,  and  that  the  legislature  for 


126  ^EW  YORK. 

the  purpose  of  promoting  the  moral  and  physical  well-being  of  the  peo- 
ple, and  the  peace,  quiet  and  good  order  of  society,  has  authority  to 
regulate  its  observance,  and  prevent  its  desecration  by  any  appropri- 
ate legislation  is  unquestioned." 

The  plea  set  up  by  Moses  that  the  pond  being  private  property, 
the  act  was  private  and  therefore  not  a  violation  of  the  law,  was  dis- 
posed of  by  quoting  the  law  and  showing  that  some  acts  are  pi'ohibitecl 
on  Sabbath  altogether,  and  one  of  these  is  fishing.  "That  is  absolutely 
prohibited  on  Sunday  everywhere  and  under  all  circumstances,"  saici 
the  Court. 

In  announcing  this  opinion  occasion  was  taken  to  declare  the 
opinion  in  the  case  of  People  v.  Dennin  incorrect.  In  that  case  it  was 
held  that  playing  ball  in  private  grounds  on  the  Sabbath,  does  not 
constitute  a  violation  of  the  statute.  But  the  Court  of  Appeals  de- 
clared that  it  is  condemned  by  the  principles  which  lie  at  the  bottom 
of  the  Sunday  laws.     (140  N.  Y.  214,  1893.) 

In  People  v.  Havnor,  the  constittttionality  of  the  "Act 
to  regulate  barbering  on  Sunday"  was  involved.  The  plea  of 
the  defendant  was  that  it  deprived  him  of  liberty  by  preventing 
him  from  carrying  on  a  lawful  occupation  as  he  wished,  and  also 
of  his  property  by  preventing  the  free  use  of  his  premises  and 
tools.     In  sustaining  the  law  the  Court  of  Appeals  said : 

"During  the  history  of  our  State  many  laws  have  been  passed 
which,  to  some  extent,  have  interfered  with  the  right  to  liberty  and 
property,  but  their  accord  with  the  Constitution  has  seldom  been  ques- 
tioned, and  when  questioned,  has  been  generally  sustained."  The 
power  of  taxation  and  the  right  to  preserve  the  public  health  and  mor- 
als, to  confine  the  insane  and  those  afflicted  with  contagious  diseases, 
are  here  mentioned.  "The  sanction  for  these  apparent  trespasses 
upon  private  rights  is  found  in  the  principle  that  every  man's  liberty 
and  property  are,  to  some  extent,  subject  to  the  general  welfare,  as 
each  person's  interest  is  presumed  to  be  promoted  by  that  which  pro- 
motes the  interest  of  all. The  inconvenience  to  some  is  not 

regarded  as  an  argument  against  the  constitutionality  of  the  statute,, 
as  that  is  an  incident  to  all  general  laws.  Sunday  statutes  have  been 
sustained  as  constitutional  almost  without  exception,  the  most  notable 
instance  to  the  contrary.  Ex  parte  Nezvman  (9  Cal.  502),  decided  by  a 
divided  court  in  an  early  day  in  California,  having  been  subsequently 
overruled  by  the  courts  of  that  State 

"While  works  of  charity  and  necessity  have  usually  been  excepted 
from  the  effect  of  laws  relating  to  the  Sabbath,  and  sometimes,  also, 
those  persons  who  keep  another  day  of  the  week,  still  quiet  pursuits 
have  not,  even  when  they  can  be  carried  on  without  the  labor  of 
others,  because  general  respect  and  observance  of  the  day,  as  far  as 
practicable,  have  been  deemed  essential  to  the  interest  of  the  public. 


TEXAS.  127 

including  as  a  part  thereof  tliose  who  prefer  not  to  keep  the  day,  a§ 
their  health  and  morals  are  entitled  to  protection,  even  against  their 
will,  the  same  as  those  of  any  other  class  in  the  community."  (149 
N.  Y.  195,  1896.) 

Sunday  concerts  and  lectures  are  lawful,  but  to  sell  refreshments 
and  exhibit  curiosities  in  connection  with  them  is  not  permitted. 
(Koster  v.  Board  of  Police.) 

A  person  who  by  means  of  false  representations  obtains  the  goods 
or  property  of  another  cannot  escape  liability  on  the  plea  that  the 
wrong  was  done  on  the  Sabbath.     (O'Shea  v.  Kohn,  33  Hun.  114,  1884.) 

The  act  forbidding  barbering  on  the  Lord's  day  is  constitutional. 
(People  V.  Buttling,  13  Misc.  587.) 

Were  it  not  for  the  ntimerons  exceptions,  incltiding  the  sale 
of  soda  water,  ice  cream,  tobacco,  newspapers,  etc.,  this  would 
be  an  admirable  law.     The  jtidicial  opinions  are  tmexcelled. 

TEXAS.      (1896.) 

"Sunda}-  Laws"  is  the  title  of  Chapter  2  of  Title  7  of  the 
Criminal  Code  of  Texas.     It  is  as  follows : 

"196.  Working  on  Sunday. — Any  person  who  shall  hereafter 
labor,  or  compel,  force,  or  oblige  his  employees,  workmen,  or  appren- 
tices to  labor,  on  Sunday,  or  any  person  who  shall  hereafter  hunt  game 
of  any  kind  whatsoever  on  Sunday  within  one-half  mile  of  any  church, 
schoolhouse  or  private  residence,  shall  be  fined  not  less  than  ten  nor 
more  than  fifty  dollars." 

"197.  The  preceding  article  shall  not  apply  to  household  duties, 
works  of  necessity  or  charity;  nor  to  necessary  work  on  farms  or  plan- 
tations in  order  to  prevent  the  loss  of  any  crop;  nor  to  the  running 
of  steam-boats  and  other  water  crafts,  rail  cars,  wagon  trains,  com- 
mon carriers,  nor  to  the  delivery  of  goods  by  them  or  the  receiving 
or  storing  of  said  goods  by  the  parties,  or  their  agents  to  v/hom  said 
goods  are  delivered;  nor  to  stages  carrying  the  United  States'  mail  or 
passengers;  nor  to  founderies,  sugar  mills,  or  herders  who  have  a 
herd  of  stock  actually  gathered  and  under  herd ;  nor  to  persons  travel- 
ling: nor  to  ferrymen,  or  keepers  of  toll  bridges;  keepers  of  hotels, 
boarding  houses,  and  restaurants,  and  their  servants;  nor  to  keepers  of 
livery  stables  and  their  servants;  nor  to  any  person  who  conscienti- 
ously believes  that  the  seventh  or  any  other  day  of  the  week  ought  to 
be  observed  as  the  Sabbath,  and  who  actually  refrains  from  business 
and  labor  on  that  day  for  religious  reasons. 

"198.  Any  person  who  shall  run  or  be  engaged  In  running  any 
horse  race,  or  who  shall  permit,  or  allow  the  use  of  any  nine  or  ten- 
pin  alley,  or  who  shall  be  engaged  in  match-shooting,  or  any  species 
of  gaming 'for  money  or  other  consideration,  within  the  limits  of  anv 


328 


TEXAS. 


city  or  town  on  Sunday,  shall  be  fined  not  less  than  twenty  nor  more 
than  fifty  dollars. 

"199.  Any  merchant,  grocer,  or  dealer  in  wares  or  merchandise, 
•or  trader  in  any  business  whatsoever,  or  the  proprietor  of  any  place 
of  public  amusement,  or  the  agent  or  employee  of  any  such  person, 
who  shall  sell  or  barter,  or  permit  his  place  of  business  or  place  of 
public  amusement  to  be  open  for  the  purpose  of  traffic  or  public 
amusement,  on  Sunday,  shall  be  fined  not  less  than  twenty  nor  more 
than  fifty  dollars.  The  term,  place  of  public  amusement,  shall  be  con- 
strued to  mean  circuses,  theaters,  variety  theaters  and  such  other 
amusements  as  are  exhibited  and  for  which  an  admission  fee  is 
charged;  and  shall  also  include  dances  at  disorderly  houses,  low  dives, 
and  places  of  like  character,  with  or  without  fees  for  admission." 
(Vol.  1,  pp.  84,  85.) 

Article  391  gives  city  councils  the  right  to  close  saloons  and  all 
places  where  liquors  are  sold,  and  places  of  amusement  and  business, 
on  Sabbath. 

Article  1184  says,  "No  civil  suit  shall  be  commenced,  nor  shall 
;any  process  be  served  on  Sunday." 

Article  3544  makes  it  the  duty  of  the  chaplains  of  penitentiaries 
"to  preach  once  every  Sunday  to  convicts"  and  "to  inculcate  in  them 
sound  principles  of  religion  and  morality. 

Articles  3560  and  3591  declare  that  no  labor  shall  be  exacted  of 
■convicts  on  Sabbath. 

The  constitutionality  of  Sabbath  laws  in  Texas  was  passed 
upon  by  the  Supreme  Court  of  that  .State  in  1867.  The  follow- 
ing extracts  from  the  Report  in  the  case  of  Gabel  v.  Houston  are 
instructive. 

"Peter  Gabel  was  a  lager-beer  distiller  and  seller  of  the  beverage 
in  the  city  of  Houston.  Peter  partook  of  the  notion,  quite  prevalent 
among  a  large  and  influential  class  all  over  the  United  States,  that 
whatever  may  be  lawfully  done  on  week  days  may  be  done  on  Sun- 
days; and  that  all  laws  restricting  the  vending  of  liquors  and  other 
drinks  on  Sundays,  and  drinking  and  jollying  over  them,  are  infringe- 
ments upon  liberty  and  natural  right;  that  they  violate  the  rights  of 
conscience  and  religion;  and  that  such  laws  are  an  infraction  of  the 
Constitution  of  the  United  States  and  of  the  State,  and  are  void." 
The  City  of  Houston  had  passed  the  following  ordinance:  "If 
-any  person  or  persons  shall,  on  Sunday,  in  any  public  house, 
room,  building,  or  enclosure,  or  in  any  storehouse  or  bar- 
room, in  said  city,  sell,  or  furnish  for  use,  any  spirituous, 
vinous,  or  malt  liquors  of  any  kind,  such  person  shall  be  deemed  guilty 
■of  a  misdemeanor,  and  shall  pay  a  fine  of  not  less  than 
$20,  nor  more  than  $50  for  each  and  every  such  offense,  to  be  recovered 
with  costs,  as  in  case  of  other  breaches  of  the  city  ordinances."  Under 


TEXAS.  129 

this  ordinance  Mr.  Gabel  was  convicted.  The  case  was  first  tried  be- 
fore the  Mayor  and  recorder,  as  justices  of  the  peace,  then  before  the 
district  court  and  finally  before  the  Supreme  Court.  Mr.  Gabel  was 
found  guilty  and  the  constitutionality  of  the  ordinance  was  upheld. 
The  Supreme  Court  said:  "It  will  not  be  denied  that  such  an  ordin- 
ance conduces  to  the  good  order  and  tranquility  of  a  city  when  it  en- 
forces obedience  to  the  rules  of  sobriety  and  decency  within  its  limits, 
-even  more  rigorously  upon  Sunday  than  other  days;  for  the  people, 
from  custom  if  not  from  law,  desist  upon  that  day  from  labor,  and  ob- 
serve it  as  a  day  of  rest,  and,  if  tempted  with  the  presence  of  the 
grog-shop  vender  of  ardent  spirits  and  malt  liquors,  may  fall  into  the 
vice  of  intoxication,  and  consequent  riots,  and  breaches  of  the  peace, 
and  other  outlawry,  and  greatly  disturb  the  peace  and  tranquility  of 
the  orderly  and  well-disposed  inhabitants  of  the  city  upon  that  day, 
which  should  be  kept  holy,  free  from  vice  and  worldly  pursuits. 

"The  Constitution  of  the  Republic  of  Texas,  under  which  this 
charter  v/as  granted,  reads  as  follows,  to  wit:  'No  preference  shall  be 
given  by  law  to  any  religious  denomination  or  mode  of  worship  over 
another,  but  every  person  shall  be  permitted  to  worship  God  according 
to  the  dictates  of  his  own  conscience." 

"Section  4.  Article  1,  of  the  State  Constitution  of  1845,  reads  as 
follows,  viz.:  'All  men  have  a  natural  and  indefeasible  right  to  wor- 
ship God  according  to  the  dictates  of  their  own  consciences;  no  man 
shall  be  compelled  to  attend,  erect,  or  support  any  place  of  worship, 
or  to  maintain  any  ministry,  against  his  consent;  no  human  authority 
ought  in  any  case  whatever  to  control  or  interfere  with  the  right  of 
conscience  in  matters  of  religion;  and  no  preference  shall  ever  be 
given  by  law  to  any  religious  societies  or  mode  of  worship.  But  it 
shall  be  the  duty  of  the  legislature  to  pass  such  laws  as  may  be  nec- 
essary to  protect  every  religious  denomination  in  the  peaceable  en- 
joyment in  their  own  mode  of  public  worship.' 

"We  are  equally  well  satisfied  that  the  ordinance  complained  of 
is  not  obnoxious  to  either  of  these  constitutional  provisions,  but,  in 
fact,  has  the  effect  to  protect  the  inhabitants  of  Houston  in  the  un- 
molested enjoyment  of  these  religious  privileges,  secured  by  these 
sections  of  the  Constitution  of  the  Republic  and  State. 

"That  all  people  of  this  country  shall  have  the  right  to  worship 
God  according  to  the  dictates  of  their  own  consciences,  or  not  at  all, 
if  they  prefer,  and  that  the  government  shall  not  establish  any  re- 
ligion for  the  people  to  obey,  or  prohibit  the  free  exercise  thereof,  ap- 
pears to  be  now  the  settled  American  doctrine,  well  established  in  the 
organic  law  of  the  nation  and  the  States.  None  here  shall  be  com- 
pelled to  observe  the  Jewish,  Mohammedan,  Catholic,  or  Protestant 
form  of  religion,  or  to  embrace  any  at  all.  All  are  free  to  embrace  any 
religious  denomination,  civilized  or  pagan,  that  his  judgment  or  taste 
may  dictate  as  the  best  or  preferable  for  him. 


I30  TEXAS. 

"When  we  consider  the  attributes  of  the  Diety  and  of  future  re- 
wards and  punishments,  and  the  temporal  welfare  of  societj',  govern- 
ment can  hardly  consider  itself  entirely  free  from  the  fostering  care 
and  protection  of  religion,  as  connected  with  the  personal,  social,  and 
domestic  virtues  of  the  people:  but  to  what  extent  government  may 
go  in  the  support  and  protection  of  religion,  with  safety  and  propriety,, 
may  be  a  subject  of  much  contrariety  of  opinion  with  statesman  and 
publicists. 

"The  vast  majority  of  our  people  profess  a  belief  in  the  Christian 
religion,  and  its  existence  has  been  recognized  by  the  constitution 
framed  by  them.  The  followers  of  that  faith  have  from  its  earliest 
existence  and  foundation  regarded  and  kept  Sunday  as  a  day  of  rest, 
free  from  labor  and  devoted  to  religious  worship.  And  those  not  at- 
tached to  any  religious  denomination  have  habitually  kept  that  day  as- 
one  of  rest  from  secular  pursuits ;  and  its  observance,  as  a  day  of  rest 
and  holy,  has  for  centuries  become  more  than  habit  or  custom;  it  has 
become  a  sentinent,  engrafted  into  our  very  social  organism,  to  be  ob- 
served and  respected  by  all— without  the  sanction  of  law  or  decrees 
of  courts.  And,  as  a  civil  regulation,  it  has  been  considered  import- 
ant for  the  physical  well-being  of  society  that  Sunday  be  observed  a» 
a  day  of  rest  from  labor,  in  order  that  the  mind  and  body  may  repose,, 
that  the  former  may  recover  or  retain  its  wonted  elasticity  and  vigor, 
and  the  latter  may  recuperate  and  be  prepared  for  more  arduous  and 
protracted  exertions  in  manual  labor.  And  in  this  view  the  observ- 
ance of  Sunday,  by  a  suspension  of  all  secular  pursuits,  may,  with 
great  propriety,  be  enforced  by  civil  law. 

"The  observance  of  Sunday  we  believe  essential  to  a  full  enjoy- 
ment of  religious  exercises  by  the  various  denominations,  m  the  spirit 
of  the  Constitution  of  the  State  quoted  above.  How  could  a  religious 
set  of  people  worship  in  a  city,  crowded  with  a  busy  population,  and 
in  the  midst  of  the  confusion,  noise  and  bustle  of  worldly  business, 
and  the  practices  deemed  by  them  unholy,  and  a  sacrilegious  desecra- 
tion of  that  holy  day? 

"The  right  to  worship  God  according  to  the  dictation  of  the  consci- 
ence has  not  at  all  been  interrupted;  nor  is  it  enjoined  upon  any  in- 
habitant of  the  city  to  attend  the  religious  exercises  of  any  denomina- 
tion; and  he  may  decline  to  attend  any,  and  amuse  himself  with  the- 
metaphysical  reflections  and  deductions  of  the  infidel.  He  is  not  re- 
quired to  attend,  erect  or  support  any  place  of  worship,  or  to  maintain 
any  ministry,  directly  or  indirectly,  contrary  to  his  conscience.  His 
rights  of  conscience,  his  religious  principles,  and  practices  under 
them,  are  not  at  all  infringed  or  impaired;  nor  does  the  ordinance  pre- 
tend to  give  any  preference  to  any  religion  or  mode  of  worship."  "It 
does  prevent  him  from  following  a  tippling  occupation  in  the  city  on 
Sunday,  by  which  crowds  of  persons  may  be  congregated  at  a  public 
house,  and,  under  the  influence  of  intoxication,  may  commit  riots  and 


VERMONT.  131 

breaches  of  the  peace,  to  the  great  annoyance  of  others,  wHo  may  feel 
it  their  religious  duty  to  desist  from  labor,  attend  worship,  and  keep 
the  day  holy;  and  we  see  a  propriety  and  due  respect  for  the  senti- 
ments or  customs  of  our  people  manifested  in  the  rule  that  compels 
a  cessation  from  labor  on  Sunday,  in  order  that  not  only  man  and 
beast  may  recuperate,  and  be  restored  to  health  and  mental  and  phy- 
sical vigor,  but  that  those  who,  in  good  faith,  may  desire  to  keep  that 
day  holy  for  the  worship  of  God  may  remain  undisturbed  in  the  exer- 
cise of  their  religious  duties: and  any  law  that  tends  to  this  result 
cannot  be  considered  repugnant  to  the  Constitution."     (29  Texas,  335.) 

Again  in  1888,  in  the  case  of  Ex  Parte  Sundstrom  before  the  Court 
of  Appeals,  the  constitutionality  of  the  law  was  upheld.     (25  App.  133.) 

In  the  case  of  Eisner  v.  The  State,  the  Supreme  Court  said:  "The 
object  of  the  legislature  was  to  forbid  all  secular  employments  on  the 
Sabbath  not  excepted  in  the  act  under  which  the  defendant  is  indicted. 
The  disregard  of  the  Sabbath,  the  refusal  to  recognize  it  as  a  day 
sanctified  to  holy  purposes,  constitutes  the  offense.  The  particular 
act  alleged  is  no  offense,  but  becomes  so  only  when  done  on  the  Sab- 
bath.    (30  Texas,  524.) 

The  proper  constrtiction  of  the  Sabbath  law  was  passed  upon 
by  the  Cotirt  of  Appeals  in  1880.  (8  Texas  Cotirt  of  Ap.  313, 
Albrecht  v.  the  State.) 

"The  obvious  intention  of  the  legislature,  as  manifested  in  Art. 
186,  of  the  Penal  Code,  was  to  prevent  altogether  the  barter  and  sale 
of  merchandise  on  Sunday,  and  to  prohibit  all  merchants,  grocers, 
dealers  in  wares  or  merchandise,  or  traders  in  any  lawful  business 
whatever,  from  desecrating  the  Sabbath,  and  distracting  with  their 
avocations  the  peace  and  quiet  of  other  portions  of  the  community, 
who  might  desire,  fi'om  religious  or  other  considerations,  to  devote 
the  day  to  the  worship  of  God,  and  to  entire  rest  from  their  daily  em- 
ployments." 

No  action  can  be  maintained  for  a  deceit  practiced  in  an  exchange 
of  horses  on  the  Lord's  day,  because  the  plaintiff  cannot  prove  the  de- 
ceit without  showing  the  terms  of  the  illegal  contract  in  which  he 
participated. 

The  law  of  this  State  is  much  weakened  by  some  of  the  ex- 
ceptions in  Section  197.  It  is  highly  gratifying,  however,  to 
find  the  Supreme  Court  upholding  the  law  on  the  ground  that 
Christianity  is  part  of  the  common  law. 

VERMONT.      (1894.) 

The  following  Sections  of  Chapter  225,  are  entitled  "Sab- 
bath-Breakinsr:'' 


332  VERMONT. 

"5140.  Any  person  who  between  twelve  o'clock  Saturday  night  and 
twelve  o'clock  the  following  Sunday  night,  exercises  any  business  or 
employment,  except  such  only  as  works  of  necessity  and  charity,  or 
holds,  or  resorts  to  any  ball  or  dance,  or  uses  or  exercises  any  game, 
sport  or  play,  or  resorts  to  any  house  of  entertainment  for  amusement 
■or  recreation,  shall  be  fined  not  more  than  two  dollars. 

"5141.  The  railroad  commissioners  may  authorize  the  running 
upon  any  railroad  of  such  through  trains  on  Sunday  as,  in  the  opinion 
of  the  board,  the  public  necessity  and  convenience  may  require,  hav- 
ing regard  to  the  due  observance  of  the  day. 

"5142.  A  person  who  hunts,  shoots  or  pursues,  takes  or  kills  wild 
game  or  other  birds  or  animals,  or  discharges  fire  arms,  except  in  the 
just  defense  of  person  or  property  or  in  the  performance  of  military  or 
police  duty,  on  Sunday,  shall  be  fined  ten  dollars,  one-half  to  go  to  the 
person  who  makes  the  complaint  and  one-half  to  the  State. 

Serving  a  process  on  Sabbath  is  illegal  except  in  case  of  necessity. 
The  following  acts  were  passed  by  the  General  Assembly  of  the  State 
of  Vermont,  1904 : 

"The  open  season  for  hunting  deer  in  this  State  shall  be  the  last 
week  in  October  of  each  year  containing  six  working  days,  Sundays 
excepted.  This  act  shall  apply  to  both  resident  and  non-resident  deer 
hunters. 

"A  person  who  hunts,  shoots  or  pursues,  takes  or  kills  wild  game  or 
other  birds  or  animals,  or  discharges  firearms,  except  in  the  just  defense 
of  person  or  property,  or  in  performance  of  military  or  police  duty,  on 
Sunday,  shall  be  fined  not  less  than  ten  or  more  than  one  hundred 
dollars,  or  be  imprisoned  not  more  than  two  months." 

In  the  case  of  Lyon  v.  Strong,  the  Supreme  Court  of  Ver- 
mont in  1834,  gave  a  deliverance  as  to  the  ground  of  the  Sab- 
bath law  from  which  we  quote  as  follows : 

"Aware  of  the  benefits  to  be  derived  from  stated  periods  of  rest 
from  manual  labor,  of  the  importance  of  having  the  same  day  ob- 
served by  all,  recognizing  that  every  denomination  of  Christians  among 
them  regarded  the  Sabbath  as  a  day  set  apart  for  moral  and  religious 
duties,  they  (the  legislature)  determined  that  every  one  should  be  pro- 
tected in  the  enjoyment  of  his  religious  privileges  and  in  the  perform- 
ance of  his  religious  duties,  and  have  made  provisions  that  those  who 
are  thus  disposed  may  on  that  day  perform  those  great  and  necessary 
duties  which  they  believe  are  required  of  them,  without  disturbance 
from  the  secular  labor  of  others;  and  further,  that  all,  whether  high 
or  low,  prisoner  or  free,  master  or  servant,  shall  be  permitted  to  rest, 
and  that  none  shall  compel  them  to  labor  on  that  day;  and  leist  through 
avarice  or  cupidity,  any  one  should  be  disposed  so  to  do,  they  have  en- 
acted that  the  day  shall  be  observed  as  a  day  of  rest  from  secular  la- 
bor and  employment,  except  such  as  necessity  and  acts  of  charity  shall 
require."     (6  Vt.  219.) 


VEKMOXT.  133 

The  constitutionality  of  the  law  seems  never  to  have  been 
questioned  before  the  Courts,  but  in  a  number  of  cases  involv- 
ing the  construction  of  the  law  the  ground  of  such  legislation  has 
been  pretty  thoroughly  canvassed.  In  1847,  ^^'i  the  case  of 
Adams  v.  Gray  this  was  done  by  Judge  Redfiield  in  an  elaborate, 
but  not  altogether  satisfactory  opinion.  In  this  case  a  horse- 
trade  had  been  made  by  the  litigants  on  Sabbath  in  the  State 
of  New  Hampshire.  The  Sabbath  laws  of  the  two  States  were 
very  similar.  Two  very  important  questions  were  considered. 
First,  whether  the  new  Hampshire  law  should  be  regarded  in  de- 
ciding the  case,  and  second  if  it  is  not  to  be  regarded,  should 
the  contract  be  declared  illegal  on  general  principles  of  public 
policy.  Both  (piestions  were  answered  in  the  negative.  The 
Court  said : 

"In  this  State,  full  Immunity  for  all  religions,  and  no  religion,  is 
equally  given  by  the  fundamental  law  of  the  State.  No  man  can  be 
abridged  of  his  perfect  liberty  in  that  respect.  And  while  this  does 
not  forbid  the  legislature  from  passing  general  laws  against  blasphemy, 
the  desecration  of  the  Lord's  day,  and  the  disturbance  of  public  wor- 
ship, it  does,  impliedly  at  least,  forbid  the  adoption  of  any  law,  which 
is  not  necessary  for  the  quiet  enjoyment  of  religious  feeling  and  relig- 
ious worship.  So  that  all  laws  which  it  is  competent  for  the  legisla- 
ture to  adopt,  must  have  reference  solely  to  preventing  the  disturbance 
of  our  citizens  in  their  religious  feelings  and  devotions.  Beyond  this, 
the  constitution  of  the  State  absolutely  prohibits  any  law.  How,  then, 
can  it  be  said,  that  a  contract  made  out  of  the  State,  upon  Sunday,  is 
any  violation  of  the  religious  feelings  or  any  infringement  of  the  re- 
ligious devotions  of  our  citizens,  any  more  than  if  made  upon  any  oth- 
er day? 

"There  is  only  one  other  ground,  upon  which,  it  seems  to  me,  it 
could  be  seriously  contended,  that  such  a  contract  is  immoral;  that  is, 
that  its  enforcement  here  tends  to  shock  the  moral  sense  of  the  com- 
munity. I  have  no  doubt  such  is  the  fact  in  regard  to  a  portion  of  the 
most  serious  minded,  earnest,  and  strenuously  religious  of  our  citizens. 
And  no  one  can  doubt,  that  the  feeling  of  so  considerable  and  influen- 
tial a  portion  of  the  citizens  of  the  State  is  entitled  to  the  highest  con- 
sideration. But  in  making  inquiry  into  the  state  of  the  moral  feeling 
of  the  whole  community,  we  must  not  forget  that,  upon  religious  mat- 
ters, it  is  almost  infinitesmally  divided.  And  before  we  could  deter- 
mine that  any  given  cause  .shocked  ihs  moral  feeling  of  the  commun- 
ity, we  must  be  able  to  find  but  one  pervading  feeling  upon  that  sub- 
ject,— so  much  so  that  a  contrary  feeling  in  an  individual  would  denom- 
inate him  either  insane,  or  diseased  in  his  moral  perceptions.  Now  no- 
thing is  more  absurd,  to  rny  mind,  than  to  argue  the  existence  of  any 


134 


VERMONT. 


such  universal  moral  sentiment,  in  regard  to  the  observance  of  Sunday. 
It  is  in  no  just  sense  a  moral  sentiment  to  all,  which  impels  us  to  the 
observance  of  Sunday,  for  religious  purposes,  more  than  any  other  day. 
It  Is  but  education  and  habit  m  the  main,  certainly.  Moral  feeling 
might  dictate  the  devotion  of  a  portion  of  our  time  to  religious  rites 
and  solemnities,  but  could  never  indicate  any  particular  time  above  all 
others. 

"But  this  will  be  best  determined  by  the  actual  state  of  opinions 
among  us,  upon  this  subject.  Some  of  our  citizens  are  atheists,  per- 
haps; a  considerable  number  deists,  or  rationalists;  and  among 
Christians  there  is  an  almost  infinite  diversity  of  opinion  in  regard  to 
this  subject.  The  Irish  Catholic,  who  may  have  become  a  denizen  of 
the  Republic,  regards  St.  Patrick's  day,  perhaps,  as  the  most  sacred  in 
the  calendar.  The  French  Catholic  is  willing  to  labor  every  day  in  the 
year,  almost,  except  on  St.  Peter's  day.  If  he  is  well  informed,  and 
conscientious,  he  will  hardly  forget  Good  Friday,  or  Christmas,  or  Ash- 
Wednesday.  The  same  is  true,  in  regard  to  these  latter  days,  with  the 
consistent  members  of  the  Church  of  England,  or  of  the  Lutheran 
Church,  or  of  the  Greek  Church,  if  any  such  there  be  among  us.  Now 
all  these  regard  Sunday;  but  not  as  more  sacred  than  some  other  days. 
It  is  but  in  commemoration  of  the  weekly  recurrence  of  the  Lord's 
day,  the  Resurrection.  But  Easter-day,  which  is  the  annual  festival 
of  the  Lord's  day,  is  truly  the  great  day  of  the  feast, — the  Sunday  of 
Sundays,  the  crowning  festival  of  the  year!  And  this,  with  Good-Fri- 
day, Ash-Wednesday,  Christmas,  and  some  few  other  prominent  fasts 
and  festivals,  is  most  religiously  observed  in  all  the  ancient  Churches; 
and  in  all  the  Lutheran  Churches, — which  embrace  Holland,  Sweden 
and  Denmark,  Prussia  and  Germany,  so  far  as  they  are  Protestant;  — 
and  in  the  English  Church  and  all  its  branches.  And  so  are  all  the 
Sundays  in  the  year,  but  with  far  less  solemnity  than  the  greater  fasts 
and  festivals  above  named.  In  addition  to  this,  it  must  be  remembered 
that  we  have  among  us  some  Jews,  perhaps,  and  some  Seventh-day 
Baptists,  who  do  not  regard  Sunday  at  all;  and  many  of  the  Friends, 
who  regard  all  days  alike.  This  may  all  be  very  unwise  or  very  un- 
reasonable, in  the  estimation  of  some;  but  it  is  none  the  less  true;  and 
we  must  take  things  as  they  are.  How  then,  can  it  be  said,  that  to 
enforce  a  contract  made  upon  Sunday,  out  of  the  State  is  shocking  to 
the  moral  sense  of  the  community?" 

As  to  the  illegality  of  contracts  made  on  Sabbath  the  Court  said: 
"There  is  a  most  urgent  necessity  so  to  administer  this  rule  in  regard  to 
them,  that  it  shall  not  be  in  the  power  of  the  reckless  and  irreligious 
to  circumvent  and  defraud  the  unwary,  under  the  guise  of  the  sacred- 
ness  of  the  time  when  their  own  injustice  was  perpetrated.  We  have 
little  doubt  such  practices  have  already  been  attempted  in  some  cases, 
and  that  it  might  become  a  not  unfrequent  resort  of  those  who  desired 
to  effectually  cut  off  all  remedy  for  their  own  fraud  and  dishonesty. 
If  the  general  rule  of  holding  contracts,  made  upon  Sunday,  void,  is. 


VIRGINIA.  135 

also,  to  shield  the  contracting  parties  from  the  consequences  of  their 
frauds,  and  to  allow  the  dishonest  and  abandoned  to  retain  whatever 
they  may  be  able  to  get  possession  of  under  such  contracts,  and  the 
same  time  release  them  from  all  liability  upon  their  own  contracts, 
then  the  rule  itself  will  be  productive  of  infinite  mischief  and  should  be 
discarded  at  once."     (19  Vt.  358). 

"It  is  well  settled  in  this  State,"  says  the  Supreme  Court  of  Ver- 
mont," whatever  may  be  the  decisions  in  other  States— that  the  illeg- 
ality which  attacks  to  a  contract  executed  on  Sunday  is  not  an  illegal- 
ity which  enters  into  the  subject  matter  or  essence,  of  the  contract, 
and  for  that  reason  renders  it  void:  that  such  contracts  only  being  il- 
legal on  account  of  the  day  on  which  they  are  made,  are  capable  of 
ratification  by  any  act  which  fairly  recognizes  them  as  existing  con- 
tracts, on  a  subsequent  week  day,  like  a  promise  to  perform,  or  pay  the 
amount  stipulated  therein,  or  a  part  payment  of  the  same."  (51  Vt. 
334). 

The  right  to  recovery  for  injuries  received  while  traveling  on 
the  Sabbath  has  been  denied  in  the  following  cases : 

"It  has  been  repeatedly  held  in  this  State  that  if  a  person  sustain 
an  injury  by  reason  of  an  insufficency  in  the  highway  while  such  party 
is  travelling  in  violation  of  the  statute,  he  cannot  recover  of  the  town 
-or  such  injury."     (53  Vt.  435.) 

In  Duran  v.  Insurance  Company  the  Court  held  that  when  an  ac- 
cident policy  which  provides  that  the  insurance  money  will  not  be  paid 
if  the  accident  occur  wholly  or  partly  from  violations  of  the  law,  the 
insured  cannot  recover  if  he  was  injured  while  violating  the  Sabbath 
law.     (63  Vt.  437.) 

It  is  not  illegal  since  1894  to  travel  on  Sabbath. 
The  exception  in  favor  of  railroads  made  by  the  Statute  of 
Vermont  is  its  weak  point.  The  argument  of  the  Supreme 
Court  in  Adams  v.  Gray  is  vicious.  The  Lord's  day  holds  a  place 
in  the  hearts  of  the  people  and  in  the  customs  of  society  that  no 
other  day  holds.  The  opinion,  however,  that  people  who  de- 
fraud and  take  shelter  under  the  Sabbath  law  should  not  be  al- 
lowed to  escape,  should  receive  general  approval. 

VIRGINIA.     (1904.) 

Chapter  185  of  the  Statutes  of  Virginia  is  entitled,  "Of  Of- 
fenses against  Morality  and  Decency."  The  sections  relating  to 
the  Lord's  day  are  entitled,  "Violations  of  the  Sabbath.  How 
punished,"  and  are  as  follows : 

"3799.  If  a  person  on  a  Sabbath  day  be  found  laboring  at  any  trade 
<or  calling,  or  employ  his  apprentices  or  servants  in  labor  or  other  busi- 


136  VTRGTNIA. 

ness  except  in  household  or  other  work  of  necessity  or  charity,  he  shall 
forfeit  two  dollars  for  each  offeiise.  Every  day  any  servant  or  appren- 
tice is  so  employed,  shall  constitute  a  distinct  offense. 

"From  any  judgment  heretofore  or  hereafter  rendered  under  this 
section,  the  right  of  appeal  shall  lie  to  the  defendant  within  ten  days, 
to  the  corporation  or  hustings  court  of  the  city,  or  to  the  circuit  court 
of  the  county  wherein  said  judgment  appealed  from  and  when  taken 
shall  he  proceeded  in  as  appeals  in  misdemeanor  cases. 

"3800.  Exceptions  as  to  the  Jews.— The  forfeiture,  declared  by  the 
preceding  section,  shall  not  be  incurred  by  any  person  who  conscienti- 
ously believes  that  the  seventh  day  of  the  week  ought  to  be  observed  as 
a  Sabbath,  and  actually  refrains  from  all  secular  business  and  labor  on 
that  day,  provided  he  does  not  compel  an  apprentice  or  servant,  not  of 
his  belief,  to  do  secular  work  or  business  on  a  Sunday,  and  does  not 
on  that  day  disturb  any  other  person. 

"3801.  What  transportation,  etc.,  by  railroads  on  Sunday  prohib- 
ited.— No  railroad  company,  receiver,  or  trustee  controlling  or  oper- 
ating a  railroad,  shall,  by  any  agent  or  employee,  load,  unload,  run,  or 
transport  upon  such  road  on  a  Sunday,  any  car,  train  of  cars,  or  loco- 
motive, nor  permit  the  same  to  be  done  by  such  agent  or  employee, 
except  where  such  cars,  trains,  or  locomotives  are  used  exclusively  for 
the  relief  of  wrecked  trains,  or  trains  so  disabled  as  to  obstruct  the 
main  track  of  the  railroad;  or  for  the  transportation  of  the  United 
States  mail;  or  for  the  transportation  of  passengers  and  their  baggage; 
or  for  the  transportation  of  live  stock;  or  for  the  transportation  of 
articles  of  such  perishable  nature  as  would  be  necessarily  impaired  in 
value  by  one  day's  delay  in  their  passage;  Provided  however,  that  if 
it  should  be  necessary  to  transport  live  stock  or  perishable  articles  on 
a  Sunday  to  an  extent  not  sufficient  to  make  a  whole  train-load,  such 
train-load  may  be  made  up  with  cars  loaded  with  ordinary  freight. 

"3802.  What  time  the  word  'Sunday'  in  the  preceding  Section  em- 
braces.— The  word  "Sunday"  in  the  preceding  Section  shall  be  con- 
strued to  embrace  only  that  portion  of  the  day  between  sunrise  and 
sunset;  and  trains  in  transitu  having  started  prior  to  twelve  o'clock 
on  Saturday  night,  may,  in  order  to  reach  their  terminus  or  shops  of 
the  railroad,  run  until  nine  o'clock  the  following  Sunday  morning,  but 
not  later." 

The  penalty  for  violating  section  3801  is  not  less  than  a  hundred 
dollars  for  each  offense,  and  it  is  a  separate  offense  in  each  county  or 
corporation  through  which  the  train  passes. 

"3803a.  No  steamboat  company  shall  by  any  agent  or  employee 
load  or  unload  on  a  Sunday  any  steamship  or  steamboat  arriving  at 
any  port  or  landing  on  the  bays,  rivers,  or  other  waters  of  this  State  or 
permit  the  same  to  be  done  by  any  such  agent  or  employee  except 
where  such  steamship  or  steamboat  is  for  the  transportation  of  the 
United  States  mail,  or  for  the  transportation  of  passengers  and  their 
baggage,  or  for  the  transportation  of  through  freight  in  transitu,  or  of 


VIRGINIA.  137 

live  stock,  or  of  articles  of  such  perishable  nature  as  would  be  neces- 
sarily impaired  in  value  by  one  day's  delay  in  their  passage;  provided, 
that  nothing  in  this  act  shall  be  construed  as  preventing  any  steam- 
ship or  steamboat  arriving  at  any  port  or  landing  on  the  bays,  rivers, 
and  on  other  waters  of  this  State  not  its  final  point  of  destination  from 
unloading  any  and  all  freight  intended  for  delivery  at  such  intermedi- 
ate port  or  landing  or  from  loading  and  taking  on  any  and  all  freight 
intended  for  shipment  from  such  intermediate  port  or  landing  to  the 
final  destination  of  said  steamship  or  steamboat." 

The  penalty  is  the  same  as  in  the  case  of  railroads. 
"3804.  No  bar-room,  saloon,  or  other  place  for  the  sale  of  intoxi- 
cating liquors  shall  be  opened,  and  no  spirituous,  malt,  or  intoxicating 
liquors  shall  be  sold  in  any  bar-room,  restaurant,  saloon,  store,  or  other 
place  between  twelve  o'clock  on  any  Saturday  night  and  sunrise  of  the 
succeeding  Monday  morning. 

"Any  person  violating  the  provisions  of  this  section  shall  upon 
conviction,  be  fined  not  less  than  one  hundred,  nor  more  than  five  hun- 
dred dollars,  and  the  license  of  the  place  where  the  sale  was  so  made 
shall  be  revoked."     (Vol.  2,  p.  2033). 

"To  shoot  or  hunt  any  game  in  this  State  on  Sunday"  is  unlaw- 
ful.    (Vol.  1,  p.  1042,  Sec.  2070a). 

In  Norfolk  &  Western  R.  R.  Co.  v.  Commonwealth  the  Supreme 
Court  of  Appeals  handed  down  an  opinion  which  but  for  an  adverse 
opinion  by  the  Supreme  Court  of  the  United  States  in  Hennington  v. 
(Jeorgia  would  have  greatly  weakened  the  railroad  law  which  is  al- 
ready greatly  impaired  by  its  numerous  provisions.  The  following 
extracts  will  give  a  sufiiciently  clear  view  of  its  character: 

"A  statute  which  forbids  the  running  of  interstate  freight  trains 
between  sunrise  and  sunset  on  a  Sunday,  is,  by  its  necessary  operation, 
no  matter  what  its  professed  object  may  be,  a  regulation  of  commerce. 
At  all  events,  it  is  an  obstruction  to  interstate  commerce  which  for  the 
purpose  of  the  present  case,  amounts  to  the  same  thing;  for,  in  any 
view,  it  is  an  invasion  of  the  exclusive  domain  of  Congress,  and,  there- 
fore, void.  To  say  that  the  State  may,  in  the  exercise  of  her  police 
powers,  enforce  by  statute  observance  of  the  Sabbath,  not  as  a  religious 
duty,  but  as  a  day  of  rest,  is  no  answer  to  the  constitutional  objection 
here  raised.  The  validity  of  such  legislation,  when  not  in  conflict  with 
a  higher  law,  is  acknowledged  by  all,  and  its  wisdom  and  propriety  de- 
nied by  none — certainly  not  by  this  court.  But  when,  in  a  case  like  the 
present  it  contravenes  the  constitution  of  the  United  States,  the  latter 
must  prevail,  because  it  is  the  'supreme  law'  in  all  matters  relating  to 
the  regulation  of  interstate  commerce."     (88  Va.  95,  1892). 

A  similar  case  was  before  the  same  court  in  189G  involving  the 
question  of  hauling  empty  cars  through  the  State  to  the  coal  mines  on 
the  Sabbath.  In  this  case  it  was  held  that  hauling  such  cars  is  not 
commerce  and  is  therefore  a  violation  of  a  constitutional  law.  In  the- 
opinion  prepared  by  Judge  Buchanan  the  court  said: 


138  WEST  VmOINIA. 

"The  experience  of  mankind  lias  shown  the  wisdom  and  necessity 
of  having  at  stated  intervals  a  day  of  rest  for  man  and  beast  from  their 
customary  labors.  It  is  necessary  both  for  the  physical  and  moral  na- 
ture of  man.  The  government  of  the  United  States,  as  well  as  the  gov- 
-ernments  of  the  States  of  the  Union,  recognizes  this  requirement  for 
rest  in  man's  nature,  and  provides  for  it  in  their  respective  jurisdic- 
tions."    (93  Va.  749). 

By  making  the  penalty  for  violations  of  the  law  relating  to 
labor  only  two  dollars  the  efficiency  of  the  law  is  somewhat  im- 
paired. The  railroad  law  makes  a  gap  wide  enough  for  almost 
any  train  the  companies  might  wish  to  run.  The  steamboat  law 
is  equally  faulty. 

WKST  VIRGINIA.        (1899.) 

Sections  16  and  17  of  Chapter  149  of  tlie  West  Virginia 
Statutes  treat  of  Sabbath-breaking.     They  are  as  follows: 

"16.  If  a  person  on  a  Sabbath  day,  be  found  laboring  at  any  trade 
or  calling,  or  employing  his  minor  children,  apprentices,  or  servants  in 
labor  or  other  business,  except  in  household  or  other  work  of  necessity 
or  charity,  he  shall  be  fined  not  less  than  five  dollars  for  each  offense. 
And  every  day  any  such  minor  child,  or  servant  or  apprentice  is  so 
employed,  shall  constitute  a  distinct  offense.  And  any  person  found 
hunting,  shooting,  or  carrying  fire-arms  on  the  Sabbath  day,  shall  be 
guilty  of  a  misdemeanor  and  fined  not  less  than  five  dollars. 

"17.  No  forfeiture  shall  be  incurred  under  the  preceding  section 
for  the  transportation  on  Sunday  of  the  mail,  or  of  passengers  and  their 
baggage,  or  for  running  any  railroad  train  or  steamboat  on  the  Sab- 
bath day,  or  for  carrying  fire-arms  or  shooting  on  that  day,  by  any  per- 
son having  the  right  to  do  so  under  the  laws  of  the  United  States  or  of 
this  State;  and  no  forfeiture  for  laboring  on  the  Sabbath  day  shall  be 
incurred  under  the  said  section,  by  any  person  who  conscientiously  be- 
Jieves  that  the  seventh  day  of  the  week  ought  to  be  observed  as  a  Sab- 
bath and  actually  refrains  from  all  secular  business  and  labor  on  that 
■day,  provided  he  does  not  compel  an  apprentice  or  servant  not  of  his 
belief  to  do  secular  work  or  business  on  Sunday,  and  does  not  on  that 
day  disturb  any  other  person  in  his  observance  of  the  same.  And  no 
contract  shall  be  deemed  void  because  it  is  made  on  the  Sabbath  day." 
(p.  974). 

The  following  also  treat  of  certain  features  of  the  question. 

"No  civil  process  or  order  shall  be  executed  on  Sunday,  except  i" 
■cases  of  persons  escaping  from  custody,  or  where  it  may  be  especially 
provided  by  law."     (Ch    41,  Sec.  15). 

An  attachment  may  be  issued  or  executed  on  Sunday  if  oath  be 
made  that  the  defendant  is  actually  removing  his  effects  on  that  day. 
<Ch.  106,  Sec.  8). 


WEi>T  VIRGINIA.  139 

Inquests  on  dead  bodies  may  be  held  on  the  Sabbath.     (Ch.  155, 
-Sec.  11). 

In  the  case  of  the  State  v.  B.  &  O.  R.  R.  Company,  the  basis 
on  which  the  Sabbath  law  rests  was  first  of  all  set  forth.  The 
railroad  company  had  been  indicted  for  hauling  coal  on  Sabbath, 
and  judgment  was  rendered  against  it  by  the  Circuit  Court  of 
Mineral  County.  The  case  came  before  the  Supreme  Court  of 
Appeals  on  a  writ  of  error.     This  court  said : 

"In  construing  our  statute  it  would  be  our  duty  to  give  to  it  a 
meaning  consistent  with  our  constitution,  if  its  meaning  was  doubtful, 
and  such  meaning  could  reasonably  be  attached  to  its  language.  Its 
meaning  is  not  however  doubtful.  It  was  obviously  not  intended  by 
our  statute  to  enforce  the  observance  of  the  Sabbath  as  a 
religious  duty.  The  Legislature  obviously  regarded  it  as 
promotive  of  the  mental,  moral,  and  physical  well-being  of 
men,  that  they  should  rest  from  their  labors  at  stated  intervals; 
^nd  in  this  all  experience  shows  they  were  right.  If  then  rest  is  to  be 
enjoined  as  a  matter  of  public  policy  at  stated  intervals,  it  is  obvious 
that  public  convenience  would  be  much  promoted  by  the  community 
generally  resting  on  the  same  day;  for  otherwise  each  individual  would 
be  much  annoyed  and  hindered  in  finding  that  those,  with  whom  he 
had  business  to  transact,  were  resting  ou  the  day  on  which  he  was 
working.  The  Legislature  holding  these  views  in  selecting  the  particu- 
lar day  of  rest  doubtless  selected  Sunday  because  it  was  deemed  a 
•proper  day  of  rest  by  a  majority  of  our  people  who  thought  it  a  religi- 
ous duty  to  rest  on  that  day;  and  in  selecting  this  day  for  these  rea- 
sons the  Legislature  acted  wisely.  The  law  requires  that  the  day  be  ob- 
served as  a  day  of  rest,  not  because  it  is  a  religious  duty,  but  because 
such  observance  promotes  the  physical,  mental  and  moral  well-being  ol 
the  community;  and  Sunday  is  selected  as  this  day  of  rest,  because  if 
any  other  day  had  been  named,  it  would  have  imposed  unnecessarily  on- 
erous obligations  on  the  community,  inasmuch  as  many  of  them  would 
have  rested  on  Sunday  as  a  religious  duty;  and  the  requirement  of  an- 
other to  be"  observed  as  a  day  of  rest  would  have  resulted  in  two  days 
being  observed  instead  of  one.  and  thus  time  would  have  been  uneces- 
sarily  wasted.  This  I  conceive  is  the  main  object  of  our  law;  but  it  is 
not  its  only  object.  While  I  am  thus  resting  on  the  Sabbath  in  obedi- 
ence to  law,  it  is  right  and  reasonable  that  my  rest  should  not  be  dis- 
turbed by  others.  Such  a  disturbance  by  others  of  my  rest  is  in  its 
nature  a  nuisance,  which  the  law  ought  to  punish,  and  Sabbath  break- 
ing has  been  frequently  classed  with  nuisances  and  punished  as  such." 
"If  any  portion  of  the  community  should  regard  it  as  their  religioua 
duty  to  rest  on  some  other  day  than  Sunday,  and  do  so  rest,  they  are 
■not  required  to  rest  on  Sunday,  as  one-seventh  of  time  is  all  that  the 
public  good  requires  to  be  devoted  to  rest.     But  if  you  do  not  rest  on 


I40  WISCONSIN. 

Sunday,  you  must  take  care  not  to  disturb  those  who  do,  and  not  to 
compel  others  to  work  who  should  rest  on  that  day. 

"The  obvious  purpose  of  the  law  was  not  to  enforce  the  perform- 
ance of  a  religious  or  moral  duty;  for  it  expressly  provides  that  this 
supposed  religious  duty  may  be  neglected  by  any  one,  ^■fho  will  rest 
the  required  seventh  part  of  his  time." 

"If  these  be  correct  views  of  the  true  meaning  and  purpose  of  the 
act,  it  is  obvious  that  there  is  no  reason  why  its  observance  should  not 
be  enforced  against  corporations,  and  why  they  should  not  be  fined 
according  to  the  provisions  of  this  act  for  employing  their  servants  in 
labor.  The  painishment  inflicted  is  not  because  they  in  employing  their 
servants  in  labor  on  Sunday  are  violating  the  fourth  commandment 
or  committing  any  immoral  act,  but  because  they  are  requiring  their 
servants  to  labor  more  than  six-sevenths  of  their  time;  and  this  is  re- 
garded by  the  State  as  prejudicial  to  their  well-being.  The  corporation 
is  therefore  punished  not  for  the  violation  of  any  social  or  moral  obli- 
gation, but  simply  because  it  is  violating  a  positive  law  forbidding  it 
to  employ  its  servants  in  labor  on  Sunday;  or  because  it  is  annoying 
others  who  are  thus  resting  in  obedience  to  law." 

It  should  be  stated  in  explanation  of  the  last  paragraph  that  it 
was  argued  by  Counsel  for  the  Railroad  Company,  that  the  statute  re- 
quires the  observance  of  the  Sabbath  day  as  a  religious  duty  imposed  up- 
on us  by  God,  and  that  as  corporations  can  owe  no  deligious  duty  the 
statute  cannot  be  construed  to  extend  to  them.  (15  W.  Va.  362,  1S79.) 
In  1SS7  the  clause  was  added  to  the  law  excepting  all  railroad 
trains  and  steamboats. 

As  to  the  proper  construction  of  the  statute,  it  has  been  held  that 
it  is  the  province  of  the  jury  to  determine  under  all  the  facts  and  cir- 
cumstances of  the  case,  whether  the  work  charged  to  have  been  done 
on  Sabbath  was  or  was  not  a  work  of  necessity.  Butchering  an  animal, 
that  had  broken  off  one  of  it  horns,  on  Sabbath  for  fear  of  fever  is  not 
a  work  of  necessity.     (State  v.  Knight,  29  W.  Va.  340). 

The  railroad  law  is  the  weak  part  of  this  legislation.  The 
judicial  opinions  are  not  above  criticism. 

WISCONSIN.      (1898.) 

Chapter  186  is  entitled,  "Offenses  against  Chastity,  Mor- 
ality, etc.,"  'Violation  of  Sunday"  is  the  sub-title  of  Section  4595> 
relating  to  Sabbath-breaking.     It  is  as  follows : 

"4595.  Any  person  who  shall  keep  open  his  shop,  warehouse  or 
workhouse,  or  shall  do  any  manner  of  labor,  business  or  work,  except 
only  works  of  necessity  or  charity,  or  be  present  at  any  dancing  or 
public  diversion,  show  or  entertainment,  or  take  part  in  any  sport, 
game  or  play,  on  the  first  day  of  the  week,  shall  be  punished  by  fine 
not  exceeding  ten  dollars;   and  such  day  shall  be  understood  to  include 


wiscoysii^'.  141 

the  time  between  the  midnight  preceding  and  the  midnight  following 
the  said  day  and  no  civil  process  shall  be  served  or  executed  on  said 
day."     (Vol.  2,  p.  2780.) 

"Any  person  who  conscientiously  believes  that  the  seventh  or  any 
■other  day  of  the  week,  ought  to  be  observed  as  the  Sabbath,  and  who 
actually  refrains  from  secular  business  and  labor  on  that  day,  may 
perform  secular  labor  and  business  on  the  first  day  of  the  week,  unless 
he  shall  wilfully  disturb  thereby  some  other  person,  or  some  religious 
assembly  on  said  day."     (Vol.  2,  p.  2782). 

In  1879,  Section  4276  which  relates  to  legal  notices  was  amended  as 
follows:  "Any  notice,  advertisement,  statement  or  publication,  re- 
quired by  law  or  the  order  of  any  court,  to  be  printed  or  published  in 
any  newspaper,  may  be  printed  and  published  in  a  newspaper  printed 
on  Sunday,  and  such  printing  and  publishing  shall  be  a  lawful  publica- 
tion, and  a  full  compliance  with  the  order  of  the  court  or  office  order- 
ing such  publication,  the  same  to  all  intents  and  purposes,  as  though 
the  same  had  been  printed  and  published  in  a  newspaper  printed  on  a 
secular  day,  etc."     (p.  2640). 

"No  courts  shall  be  open  or  transact  any  business  on  the  first  day 
of  the  week." 

No  civil  process  can  be  served  or  executed  on  the  first  day  Of  the 
■week. 

"In  case  of  exigency,  an  injunction  may  be  granted,  and  by  direc- 
tion of  the  court  or  judge,  may  be  served  on  Sunday." 

Magistrates  are  to  preserve  peace  and  order,  and  if  necessary  ar- 
rest offenders  on  the  Sabbath. 

The  opinions  handed  down  by  the  Supreme  Court  of  Wis- 
consin are  not  numerous  and  do  not  consider  the  constitutional 
principles  involved.  They  relate  chiefly  to  contracts  made  on  the 
Lord's  day  and  to  liability  for  damages  for  injuries  received  on 

that  day. 

A  contract  or  agreement  made  on  the  first  day  of  the  week  is  void 
and  will  not  be  enforced  in  a  court  of  law,  but,  "Where  a  contract, 
otherwise  valid,  is  void  by  reason  of  having  been  made  on  Sunday,  .  .  . 
.  .  .a  subsequent  promise  to  pay  for  the  goods,  made  on  any  day  other 
than  Sunday,  is  valid."     (31  Wis.  252,  1872). 

A  town  is  not  obliged  to  repair,  on  Sabbath  day,  a  hole  in  the 
highway  caused  by  a  rain  on  Saturday  night.     (33  Wis.,  277,  1873). 

A  man  who  hired  a  wrecking  machine  for  seven  days  was  required 
to  pay  for  its  use  on  Sabbath  although  he  did  not  use  it  on  that  day. 
If  the  contract  had  included  its  use  on  that  day  it  would  have  been 
void  and  could  not  have  been  enforced.  But  the  court  declared  that 
"the  mere  stipulation,  that  in  computing  the  amount  of  the  hire,  Sun- 
day should  be  reckoned  as  one  day,  does  not  necessarily  contemplate 
its  use  on  that  day  and  does  not  render  the  contract  illegal."  (37  Wis. 
41,  1875). 


142  WYOMING. 

If  injuries  are  received  while  travelling  on  Sabbath  the  right  to 
recover  is  not  affected  by  the  fact  that  the  injured  party  is  travelling 
for  pleasure.  "He  does  not  thereby  become  an  outlaw,  but  is  as  much 
within  the  protection  of  the  law,  and  is  entitled  to  the  same  degree  of 
care,  as  though  he  had  postponed  his  ride  till  the  next  day.'  (Rnoulton 
V.  Milwaukee  City  Ry.  Co.) 

While  a  cattle  drover  was  driving  cattle  across  a  bridge  in  the 
town  of  Wauwatoso  on  Sabbath  the  bridge  broke  down  and  some  of  the 
cattle  were  killed.  In  the  damage  suit  which  followed  the  Supreme 
Court  held  that  while  the  drover  was  violating  the  law  and  was  liable 
to  a  fine  the  accident  happened  because  of  the  unsafe  ouudiixon  of  the 
bridge,  and  would  have  occurred  had  he  been  crossing  ou  say  other 
day,  and  that  he  was  entitled  to  recover.     (29  Wis.  21,  1871). 

In  Knox  v.  Clifford  it  was  shown  that  "a  note  was  actually  made 
and  delivered  on  Sunday,  but  was  dated  on  Saturday."  It  was  claimed 
that  this  rendered  it  void.  The  Supreme  Court  held  that  "Where  a 
party  makes  and  puts  in  circulation  a  negotiable  note  purporting  to 
be  made  and  bearing  date  on  some  secular  day,  he  is  estopped,  as 
against  an  innocent  holder,  from  showing  that  it  was  actually  exe- 
cuted and  delivered  on  Sunday."     (38  Wis.  651,  1875.) 

Loaning  money  on  the  Sabbath  is  business  and  is  unlawful,  and 
the  law  will  not  lend  its  support  to  a  claim  founded  on  its  own  vio- 
lation.    (51  Wis.  46.) 

Securing  signatures  to  a  petition  relating  to  secular  business  on 
the  Lord's  day  is  unlawful.     (52  Wis.  320.) 

A  claim  for  damages  in  case  of  eviction  cannot  be  based  on  profits 
made  in  violation  of  the  Sabbath  law.     (100  Wis.  414.) 

A  subscription  for  the  building  of  a  church  made  on  the  Sabbath 
is  valid.     (113  Wis.  567.) 

The  statute  making  it  lawful  to  publish  legal  notices  in  Sun- 
day newspapers  is  a  great  injustice  to  those  who  do  not  read  such 
papers.  With  this  exception  the  law  of  Wisconsin  is  good. 
With  very  few  exceptions  the  opinions  of  the  courts  are  judicious 
and  give  the  law  strong  support. 

WYOMING.     (1899.) 

Chapter  10,  Division  i,  Title  20,  of  the  Wyoming  Statutes 
is  entitled  "Sunday."     It  is  as  follows : 

"2642.  For  the  purposes  of  this  chapter  the  first  day  of  the  week, 
commonly  called  Sunday,  shall  begin  with  midnight  Saturday  and  ter- 
minate the  following  midnight. 

"2643.  Every  person  or  persons,  company  or  corporation,  having 
license  to  sell  liquors  under  the  laws  of  Wyoming,  who  shall  keep 
open,  or  suffer  his  or  their  agent  or  employee  to  keep  open,  his  or  their 


PORTO  RICO.  143 

place  of  business,  or  who  shall  sell,  give  away  or  dispose  of,  or  per- 
mit another  to  sell,  give  away  or  dispose  of,  on  his  or  their  premises, 
any  spirituous,  malt,  vinous  or  fermented  liquors,  or  any  mixtures  of 
any  such  liquors,  on  the  first  day  of  the  week,  commonly  called  Sun- 
day, or  upon  any  day  upon  which  any  general  or  special  election  is  be- 
ing held,  shall  be  quilty  of  a  misdemeanor,  and  upon  conviction,  shall 
be  fined  in  any  sum  not  less  than  twenty-five  dollars,  or  more  than  one 
hundred  dollars,  or  imprisoned  in  the  county  jail  noi  to  exceed  three 
months. 

"2644.  It  shall  be  unlawful  for  any  person  or  persons,  company 
or  corporation,  to  keep  open  any  barber  shop,  store,  shop  or  other 
place  of  business  for  the  transaction  of  business  therein,  upon  the  first 
day  of  the  week  comrr'Only  called  Sunday;  provided,  this  section  shall 
not  apply  to  newspaper  printing  offices,  railroads,  telegraph  compan- 
ies, hotels,  restaurants,  drug  stores,  livery  stables,  news  depots,  farm- 
ers, cattlemen  and  ranchmen,  mechanics,  furnaces  or  smelters,  glass 
works,  electric  light  plants  and  gas  works,  the  vendors  of  ice,  milk, 
fresh  meat  and  bread,  except  as  to  the  sale  of  liquors  and  cigars.  Any 
person,  company  or  corporation  who  shall  violate  the  provisions  of 
this  section,  shall,  on  conviction  thereof,  be  fined  in  a  sum  of  money 
not  less  than  twenty-five  dollars,  nor  more  than  one  hundred  dollars, 
for  each  offense."     (p.  717.) 

This  law  permits  far  more  than  it  prohibits,  and  no  cases 
seem  to  have  reached  the  Supreme  Court. 

PORTO  RICO.      (1902.) 

The  Sabbath  law  of  Porto  Rico  is  contained  in  Title  XIX  of 
the  Penal  Code  and  is  entitled  "Sunday  Closing.''  It  is  as  fol- 
lows : 

"553.  That  every  Sunday  commercial  and  industrial  establish- 
ments, excepting  public  markets,  pharmacies,  bakeries,  hotels,  res- 
taurants, cafes,  and  places  where  refreshments  only  are  served,  ex- 
cepting also  public  and  quasi-public  utilities  and  works  of  emergency, 
necessary  to  prevent  unusual  and  serious  financial  loss,  shall  remain 
closed  and  do  no  business  whatever  after  twelve  o'clock  noon.  This 
prohibition  shall  not,  however,  extend  to  theaters  and  other  places  de- 
voted exclusively  to  amusements  or  to  charitable  purposes;  at  all 
such  places  it  shall  be  lawful  to  work  at  any  hour  on  Sunday,  but  only 
in  aid  of  such  charitable  purposes  or  amusements. 

"554.  The  municipal  council  of  any  municipality  may,  by  ordin- 
ance, require  commercial  and  industrial  establishments,  including 
those  excepted  in  Section  553,  or  any  of  them,  to  remain  closed  at  all 
hours  on  Sunday,  excepting  the  works  of  emergency  therein  mentioned. 

"555.     In  case  of  disorder  on  Sunday  in  any  establishment  herein 


.144  PORTO  RICO. 

excepted  from  the  provisions  hereof,  or  excepted  in  any  municipal  or- 
dinance enacted  under  the  authority  hereof,  the  alcalde  may  order  said 
establishment  to  be  closed  forthwith  during  the  remainder  of  the  day 
on  which  the  disorder  occurs;  and  in  case  of  a  repetition  in  the  same 
establishmentj  of  disorder  on  any  other  Sunday,  the  alcalde  may  di- 
rect such  establishment  to  be  closed  on  Sunday  for  a  period  not  ex- 
ceeding three  months;  and  in  case  of  each  subsequent  offense  in  the 
same  establishment,  the  alcalde  may  order  it  to  be  closed  on  Sunday 
for  a  period  not  exceeding  one  year." 

'  Section  556  fixes  the  penalty  at  five  to  ten  dollars  for  the  first  of- 
fense, and  from  ten  to  twenty-five  dollars  for  the  second  offense,  (pp. 
•612-614.) 


CHAPTER   V. 

STATES  WHOSE  SABBATH  LAWS  ARE  INHERENTLY 

WEAK. 

In  the  fourth  Hst  of  States  are  to  be  placed  those  whose  laws 
are  inherently  weak  because  the  proliibitions  are  limited  to  a 
few  of  the  common  violations  of  the  sanctity  of  the  Sabbath.  In 
some  of  the  States  of  this  class  labor  is  not  prohibited,  in  some 
no  mention  is  made  of  business,  while  in  some  nothing  is  prohib- 
ited except  such  things  as  disturb  congregations  and  families  in 
the  religious  observance  of  the  day.  In  some  of  them  there  is 
no  prohibition  of  hunting  and  fishing. 

COLORADO.        (189 1.) 

"Sunday  worship"  is  the  title  of  the  sections  of  the  Colorado 
Code  on  the  Sabbath  question.     They  are  as  follows  : 

"1370.  Any  person  who  shall  hereafter  knowingly  disturb  the 
peace  and  good  order  of  society,  by  labor  or  amusement,  on  the  first 
day  of  the  week,  commonly  called  Sunday  (works  of  necessity  and 
charity  excepted),  shall  be  fined,  on  conviction  thereof,  in  any  sum 
not  exceeding  fifty  dollars.     (Vol.  1,  p.  947.) 

"1371.  Whoever  shall  be  guilty  of  any  noise,  rout  or  amusement 
•on  the  first  day  of  the  week,  called  Sunday,  whereby  the  peace  of  any 
private  family  may  be  disturbed,  or  who  shall,  by  a  disorderly  or  im- 
moral conduct,  interrupt  or  disturb  the  meeting,  processions  or  cere- 
monies of  any  religious  denomination,  on  either  a  Sunday  or  week- 
day, such  person  so  offending  shall  be  deemed  quilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined  in  any  sum  not  ex- 
•ceeding  fifty  dollars.     (Vol.  1,  p.  947.) 

145 


146  COLORADO. 

"1323.  If  any  person  shall  be  guilty  of  open  lewdness,  or  other 
notorious  act  of  public  indecency,  tending  to  debauch  the  public 
morals,  or  shall  keep  open  any  tippling  or  gaming  house  on  the  Sab- 
bath day  or  night,  or  shall  keep  a  lewd  house,  etc. ;  every  such  person 
shall,  on  conviction,  be  fined  not  exceeding  one  hundred  dollars,  or  im- 
prisonment in  the  county  jail  not  exceeding  six  months.  (Vol.  1,  p. 
932.) 

1445  provides  that  prisoners  sentenced  to  hard  labor  are  not  to- 
work  on  Sabbath. 

'•2597.  That  any  person  who  conscientiously  observes  the  seventh 
day  of  the  week,  commonly  called  Saturday,  as  the  Sabbath  day,  and 
refrains  from  doing  secular  labor  upon  that  day,  shall  not  be  required 
to  serve  as  a  juror,  or  as  a  witness,  on  such  day,  if  he  or  they  shall 
ask  to  be  excused  from  such  service."     (Vol.  3,  p.  726,  L.  '91.) 

2718  provides  that  attachments  to  secure  property  may  be  issued 
on  Sabbath.  Bills  and  notes  due  on  Sabbath  are  payable  on  Saturday, 
Sec.  265.     County  offices  are  not  open  on  Sabbath.     Sec.  930. 

2840,  after  providing  for  licenses  for  theaters,  circuses,  and  shows, 
declares:  "No  person  shall  be  allowed  by  virtue  of  any  such  license 
to  open  any  place  of  public  amusement,  such  as  a  theater,  circus  or 
show,  on  the  Sabbath  or  Lord's  day;  but  any  person  who  shall  so  of- 
fend on  such  day  shall  be  fined  in  a  sum  not  less  than  fifty  nor  more 
than  one  hundred  dollars,  for  every  such  offense." 

A  recent  statute  requires  every  saloon,  bar  or  other  place  where 
spirituous,  vinous,  malt  or  other  liquors  are  kept,  sold,  bartered,  ex- 
changed or  given  away,  to  be  closed  from  twelve  o'clock  on  Saturday 
night  until  six  o'clock  on  Monday  morning,  and  declares  that  no  per- 
son shall  be  permitted  to  be  or  remain  in  or  around  the  same,  except 
those  connected  therewith.  The  penalty  for  violating  this  law  is  not 
Isss  than  $100  nor  more  than  $500. 

The  public  courts  hold  no  session  on  that  day.  Sec.  3511.  When 
Sabbath  is  the  meeting  day  of  the  State  Board  of  Canvassers,  they 
are  to  meet  the  next  day.  Sec.  1633.  The  State  Library  is  not  open 
on  the  Sabbath.  Sec.  2802.  Nor  the  Supreme  Court  Library.  Sec.  987, 
Inmates  of  the  State  Reformatory  are  not  to  labor  on  Sabbath.  Sec. 
4174.     Tax  sales  are  not  to  be  held  on  Sabbath.     Sec.  3888. 

In  1893  it  was  enacted  "That  it  shall  be  a  misdemeanor  for  any 
person  to  carry  on  the  business  of  barbering  on  Sunday  in  any  city 
of  the  first  or  second  class,  whether  incorporated  by  general  law  or 
special  charter,  in  the  State  of  Colorado.  The  penalty  is  from  $25  to 
$50  or  imprisonment  from  fifteen  to  thirty  days,  or  both.  (Vol.  3,  p. 
360.) 

Contracts  made  on  Sabbath  are  valid. 

The  charter  of  the  city  of  Denver  previous  to  1889  gave  to 
that  city  entire  jurisdiction  over  the  liquor  traffic  within  its  limits. 
A  city  ordinance  was  passed  requiring  saloons  to  be  closed  only 


ILLlNOiy.  147 

part  of  the  Sabbath.  In  Huffsmith  v.  The  People,  it  was  lield 
that  the  charter  takes  away  all  jurisdiction  from  the  State,  and 
that  there  can  be  no  prosecution  for  keeping  open  a  saloon  at  the 
hours  permitted  by  the  city  ordinance.     (8  Col.  175,  1884.) 

This  charter  was  amended  in  1889,  and  luider  the  new  char- 
ter it  was  held,  in  Heinssen  v.  The  State,  that  this  exclusive  jur- 
isdiction is  withdrawn  and  that  the  saloons  must  obey  the  State 
law.  Jutice  Elliott  in  rendering-  the  opinion  of  tlu-  court  said 
concerning  the   Colorado   Statute  : 

"Our  laws  do  not  recognize  Sunday  as  having  any  particular  sanc- 
tity or  sacredness  above  other  days;  but  the  law  does  recognize  the 
fact  that  large  numbers  of  our  people  abstain  from  their  usual  employ- 
ments on  Sunday,  and  that  many  of  them  devote  the  day  more  or  less* 
to  religious  worship  and  works  of  charity,  while  others  enjoy  it  as  a 
day  of  rest,  recreation  or  pleasure,  according  to  their  several  inclina- 
tions.... Provision  is  also  made  to  promote  peace  and  quiet,  and  to 
prevent  dissipation  and  disturbance,  to  the  end  that  citizens  of  all 
classes  may  enjoy  the  privileges  of  the  day  as  they  severally  please,  in 
an  orderly  manner,  without  trespasing  upon  the  privileges  of  others. 
The  observance  of  one  day  in  seven  as  a  day  of  rest  is  conduc- 
ive to  the  sanitary,  moral  and  physical  well-being  of  the  race."  (14 
Col.  228,  1890). 

In  Muller  v.  The  People,  this  opinion  was  reaffirmed,  the  court  de- 
claring that,  "We  are  satisfied  that  it  was  the  intention  of  the  general 
assembly  to  subject  municipal  corporations  organized  under  the  gen- 
eral laws  of  the  State  to  the  general  statutory  provisions  relative  to 
the  keeping  open  of  saloons  on  Sunday."     (24  Col.  251,  1897.) 

With  respect  to  the  use  of  the  Sunday  newspaper  to  give  public 
notices  required  by  law  it  is  held  that  "The  publication  of  notice  of 
the  sale  of  real  estate  for  taxes  in  a  Sunday  newspaper  does  not  con- 
stitute legal  notice,  and  a  sale  based  on  such  publication  is  void."^ 
(Schwed  V.  Hartwitz  et  al.  23  Col.  187,  1896). 

The  validity  of  the  law  against  keeping  saloons  open  on  the  Sab- 
bath and  the  fact  that  the  fine  is  not  excessive  were  maintained  in 
the  case  of  Cardillo  v.  The  People,  26  Col.  355.     (1899.) 

\\niile  the  law  of  Colorado  fails  in  its  prohibitory  clause  by 
not  forbidding  business,  and  by  forbidding  only  such  labor  and 
amusements  as  disturb  others,  it  still  possesses  some  merit.  The 
judicial  opinions,  especially  those  against  legal  notices  in  Sunday 
papers  and  the  Sunday  saloon  are  praiseworthy. 

ILLINOIS.      (1903.) 
"Sunday"  is  the  title  of  the  Sections  of  the  Criminal  Code 
of  Illinois  relating  to  the  Sabbath  ;  they  are  as  follows : 


I4S  ILLINOIS. 

'•259.  Whoever  keeps  open  any  tippling  house,  or  place  where 
liquor  is  sold  or  given  away,  upon  the  first  day  of  the  week,  com- 
monly called  Sunday,  shall  be  fined  not  exceeding  $200."  This  penalty 
has  been  changed  to  fine  not  exceeding  $100,  or  imprisonment  not  ex- 
ceeding six  months. 

"260.     Sunday  shall  include  the  time  from  midnight  to  midnight. 

"261.  Whoever  disturbs  the  peace  and  good  order  of  society  by 
labor  (works  of  necessity  and  charity  excepted),  or  by  any  amusement 
or  diversion  on  Sunday,  shall  be  fined  not  exceeding  $25.  This  section 
shall  not  be  construed  to  prevent  watermen  and  railroad  companies 
from  landing  their  passengers,  or  watermen  from  loading  and  unload- 
ing their  cargoes,  or  ferrymen  from  carrying  over  the  water  travelers 
and  persons  moving  their  families,  on  the  first  day  of  the  week,  nor 
to  prevent  the  due  exercise  of  the  rights  of  conscience  by  whoever 
thinks  proper  to  keep  any  other  day  as  a  Sabbath. 

"262.  Whoever  shall  be  guilty  of  any  noise,  rout  or  amusement  on 
the  first  day  of  the  week,  called  Sunday,  whereby  the  peace  of  any 
private  family  may  be  disturbed,  shall  be  fined  not  exceeding  $25." 
(p.  665.) 

In  McPherscjii  v.  A'illage  of  Chejmnse,  involving  the  right  of 
an  incorporated  village  to  pass  an  ordinance  prohibiting  persons 
■from  keeping  open  their  places  of  bnsiness  for  the  purpose  of 
vending  goods,  wares  and  merchandise,  on  the  first  day  of  the 
week,  it  was  argued  that  such  an  ordinance  is  inconsistent  with 
and  repugnant  to  the  policy  of  the  State.     But  the  Court  said : 

"There  is  no  repugnancy  between  them.  We  do  not  admit  that 
the  keeping  open  of  the  stores  in  a  village  on  Sunday  is  allowable 
under  the  statute — that  it  would  not  disturb  the  peace  and  good  order 
of  society.  Sunday,  as  it  is  observed  by  common  usage,  is  not  only 
set  apart  as  a  day  of  rest  from  labor,  but  it  is  devoted  to  religious  wor- 
ship. The  consecration  of  the  day  to  its  wonted  manner  of  observ- 
ance, is  a  blessing  to  mankind.  Besides  the  recuperative  effect  re- 
ferred to,  it  has  its  other  beneficial  uses.  It  affords  oppor- 
tunity for  moral,  intellectual  and  social  culture.  It  is  pro- 
motive of  good  habits,  and  tends  to  improve  the  manners  of  men.  It 
is  civilizing  and  refining  in  all  its  influences.  Whatever  detracts 
from  the  observance  of  the  day,  as  it  is  customarily  observed,  is  not 
to  be  countenanced.  The  keeping  open  by  persons  of  their  places  of 
business  in  a  community,  on  Sunday,  for  the  exercise  of  the  business 
of  their  ordinary  callings,  is  a  public  and  serious  interference  with 
the  observance  of  the  day  in  its  accustomed  mode  of  observance.  It 
is  obstructive  of  the  purposes  for  which  the  day  is  set  apart.  It  is 
offensive  to  the  moral  sense  of  the  community.  It  disturbs  the  peace 
of  society,  in  its  open  interference  with  the  peace  and  quiet  of  a  day 
devoted  as  a  day  of  rest  and  for  religious  worship.     It  disturbs  the 


IlJjyOIS.  149 

good  order  of  society  in  publicly  and  flauntingly,  and  in  defiance  of 
public  sentiment,  desecrating  a  day,  and  inviting  others  to  its  desecra- 
tion, set  apart  for  purposes  of  the  highest  well  being  of  human  so- 
ciety."    (114  111.  46,  1886.) 

In  1895  the  legislature  of  Illinois  passed  an  act  making  it  "unlaw- 
ful for  any  person  or  persons  to  keep  open  any  barber  shop,  or  carry 
on  the  business  of  shaving,  hair-cutting  or  tonsorial  work,  on  Sunday, 
within  this  State."  To  test  the  constitutionality  of  the  act  the  case  of 
Eden  v.  The  People  was  brought  before  a  justice  of  the  peace  who 
sustained  the  law.  Appeal  was  taken  to  the  Criminal  Court  of  Cook 
County  by  which  the  law  was  again  sustained.  The  case  was  then 
appealed  to  the  Supreme  Court  by  which  the  law  was  declared  to  be 
unconstitutional.     A  brief  examination  of  the  case  will  be  instructive. 

It  should  be  remembei*ed  that  Illinois  belongs  to  a  calss  of  States 
whose  Sabbath  laws  are  weak  in  their  prohibitory  clauses.  In  this 
case  the  court  pointed  to  the  fact  that  the  Illinois  statute  "merely  pro- 
hibits labor  and  amusement  which  disturb  the  peace  and  good  order 
of  society."     Under  this  law  it  was  held  as  follows: 

"Each  and  every  citizen  is  left  perfectly  free  to  labor  and  transact 
business  on  Sunday  or  refrain  from  labor  and  business,  as  he  might 
choose,  so  long  as  he  does  not  disturb  the  peace  and  good  order  of  so- 
ciety. By  the  act  in  question  an  attempt  has  been  made  by  the  legis- 
lature to  inaugurate  a  radical  change  in  the  law  as  to  a  class  of  the 

laboring  element  of  the  State — the  barbers The  income  derived 

from  his  place,  and  his  own  labor  and  the  labor  of  his  employees,  are 
his   property,  but   the  legislature  has  by  the  act  taken  that  property 

from  him The  barber  is  thus  deprived  of  property  without  due 

process  of  law,  in  direct  violation  of  the  Constitution  of  the  United 
States  and  of  this  State." 

It  was  held  that  this  statute  cannot  be  sustained  as  an  exercise 
of  the  police  power  of  the  State  which  involves  the  right  to 
protect  the  public  interest,  the  public  welfare,  or,  as  stated  in 
this  opinion,  "the  health,  comfort,  safety  or  welfare  of  society." 
How,  it  may  be  asked,  is  tlie  health,  comfort,  safety  or  welfare  of 
society  to  be  injuriously  affected  by  ke^^ping  open  a  barber  shop  on 
Sunday?  It  is  a  matter  of  common  observation  that  the  barber  busi- 
ness, as  carried  on  in  this  State,  is  both  quiet  and  orderly.  ...  In  view 
of  the  nature  of  the  business  and  the  manner  in  which  it  is  carried  on 
it  is  difficult  to  perceive  how  the  rights  of  any  person  can  be  affected 
or  how  the'  comfort  or  welfare  of  society  can  be  disturbed."  "If  the 
public  welfare  of  the  State  demands  that  all  business  and  all  labor 
of  every  description,  except  works  of  necessity  and  charity,  shall  cease 
on  Sunday,  the  first  day  of  the  week,  and  that  day  shall  be  kept  as  a 
day  of  rest,  the  legislature  has  the  power  to  enact  a  law  requiring  all 
persons  to  refrain  from  their  ordinary  callings  on  that  day.  All  will 
then  be  placed  on  a  perfect  equality,  and  none  can  complain  of  an  un- 


I50  ILLINOIS. 

just  discrimination.  But  when  the  legislature  undertakes  to  single  out 
one  class  of  labor  harmless  in  itself,  and  condemn  that  and  that  alone, 
it  transcends  its  legitimate  powers,  and  its  action  cannot  be  sus- 
tained."    (161  111.  296,  1896.) 

In  defining  the  word  necessity  it  is  held  that  by  this  term  'the  law 
does  not  mean  a  physical  or  absolute  necessity,  but  a  moral  fitness 
or  propriety  of  the  work  done  under  the  circumstances  of  each  par- 
ticular case.  Any  work  necessary  to  be  done  to  secure  the  public 
safety,  by  the  safe  keeping  of  a  felon  or  delivering  him  to  bail  must 
come  within  the  true  meaning  of  the  exception.'  Generally  speaking, 
however,  judicial  acts  cannot  be  done  on  the  Lord's  day.  (Johnston 
V.  The  People,  31  111.  469.) 

In  the  case  of  Scammon  v.  The  City  of  Chicago,  the  Supreme  Court 
held  that  a  notice  appearing  in  a  Sunday  newspaper  is  not  valid.  40 
111.  146.  The  Court  said.  "Although  we  have  departed  from  the  austere 
observances  of  the  New  England  colonists,  we  have  not  drifted  so  far 
in  the  opposite  direction  as  to  recognize  no  distinction  between  Sun- 
days and  the  other  days  of  the  week.  The  experience  of  the  world 
has  taught  the  necessity  of  setting  apart  one-seventh  of  our  time  for 
religious  worship  and  meditation,  and  for  complete  repose  from  the 
harassing  and  absorbing  pursuit  of  gain,  ambition  and  pleasure.  Even 
those  who  are  not  guided  by  the  teachings  of  Christianity,  acknowl- 
edge the  necessity  of  a  rational  observance  of  the  Sabbath  as  conducive 
in  the  highest  degree  to  the  temporal  interests  of  society.  While  leg- 
islation prescribing  the  precise  mode  of  its  observance  would  be  justly 
regarded  as  an  unwarrantable  interference  with  individual  liberty,  on 
the  other  hand,  all  agree  that  no  person  should  be  permitted  to  follow 
his  ordinary  secular  occupations,  if,  by  so  doing  he  disturbs  that  portion 
of  the  community  which  desires  to  devote  the  day  to  religious  worship 
and  meditation." 

Keeping  open  tippling  houses  on  the  Sabbath  is  a  violation  of  the 
statute,  and  it  is  not  necessary  to  prove  that  it  is  done  to  the  encour- 
agement of  idleness,  gaming,  drinking  and  other  misbehaviour,  but  it 
must  be  shown  that  liquor  was  sold  or  drank.  Fant.  v.  The  People,  45 
111.  259.  The  law  is  violated  if  only  beer  is  sold,  or  if  the  bar  tender 
keeps  the  saloon  open  and  shows  his  v,'illingness  to  sell,  though  he 
sell  but  a  single  glass  or  none  at  all.  The  law  is  violated,  although 
the  person  charged  keeps  a  boarding  house,  and  the  saloon  is  used  as 
a  sitting  room  for  the  boarders,  provided  it  is  also  accessible  to  the 
public  for  purposes  prohibited  by  the  statute.  Koop  v.  The  People,  47 
111.  327.  See  also,  15  111.  441.  Maine  v.  McCartney:  78  111.  294,  Kroer 
V.  People,  294;  86  111.  33,  Siebold  v.  People. 

On  a  certain  Sabbath  a  bill  in  chancery  was  brought  "in  the 
Livingston  Circuit  Court,  praying  for  a  writ  of  injunction  to  re- 
strain the  Fairbury,  Pontiac  and  Northwestern  Railway  Com- 


ILLINOIS.  151 

pany  from  taking  possession  of  one  of  the  principal  streets  in  the 
incorporated  town  of  Fairbury,  for  the  purpose  of  grading,  tie- 
ing  and  ironing  the  same  for  the  track  of  their  railroad."  The 
bill  was  filed  by  a  large  property  owner  on  the  street  to  be  taken 
by  the  railway,  and  it  alleges  that  the  company,  immediately 
after  twelve  o'clock  of  the  night  of  Saturday,  with  a  large  force 
of  men,  had  taken  violent  possession  of  the  street  for  the  express 
and  avowed  purpose  of  finishing  their  track  through  its  entire 
length  before  the  next  Monday  morning;  and  that  they  had  se- 
lected Sunday  for  the  work,  for  the  express  purpose  of  evading 
an  injunction,  and  avoiding  the  process  of  court,  and  for  the 
purpose  of  obtaining  and  holding  the  street  without  paying  for 
it  or  the  damages  thereby  occasioned  to  the  property  owners 
upon  it.     The  record  in  the  case  says : 

"This  bill  was  presented  to  the  master  in  chancery,  in  the  ab- 
sence of  the  circuit  judge,  on  Sunday.  The  writ  of  injunction  was  or- 
dered by  the  master  on  that  day,  and  issued  by  the  clerk  and  served 
by  the  sheriff  on  the  same  day." 

At  the  next  term  of  court  the  writ  was  quashed  and  the  bill  dis- 
missed.    The  case  went  to  the  Supreme  Court  on  a  writ  of  error. 

The  ground  taken  by  the  railroad  company  was  that  since  Sabbath 
is  dies  non  juridicus  a  writ  cannot  be  issued  on  that  day.  The  Court 
said: 

''Here  this  dies  non  juridicus  was  selected  by  the  railway  com- 
pany as  the  proper  day  to  commit  a  great  outrage  upon  private  and 
public  rights,  believing  the  arm  of  the  law  could  not  be  extended  on 
that  day  to  arrest  them  in  their  high  handed  and  unlawful  design.  To 
the  complainant  the  acts  they  were  organized  to  perpetrate  on  that  day 
were  fraught  with  irreparable  injury.  Feeble  indeed  would  be  the 
judicial  arm  if  it  could  not  reach  such  miscreants."  (Langabier  v. 
P.  F.  &  N.  W.  R.  R.  Co.  G4  111.  243,  1872) 

The  case  of  Richmond  v.  Moore  involved  the  validity  of 
contracts  made  on  the  Lord's  day.  The  case  came  first  before 
the  Superior  Court  of  Cook  County,  next  before  the  Appellate 
Court  of  the  First  District,  and  finally  before  the  Supreme  Court 
of  the  State.  The  validity  of  such  contracts  was  sustained. 
Among  other  things  the  Supreme  Court  said : 

"Our  statute,  by  its  very  terms,  is  for  the  preservation  of  the  peace 
and  good  order  of  society  from  disturbance.  It  is  not,  nor  can  it  be, 
te'd  to  have  been  the  purpose  of  the  statute  to  compel  the  performance 
of  a  religious  duty,  however  necessary  to  the  future  welfare  of  the  in- 
dividual failing  to  perform  it. 


152  ILLINOIS. 

"But  the  statute  does  protect  the  religious  community  from  being 
disturbed  in  their  devotions  ai)d  worship  by  the  indecent  disregard  of 
their  right  to  be  undisturbed  on  that  day.  But  it  permits  others,  that 
do  not  recognize  the  Christian  Sabbath,  to  Iveep  another  day  of  rest. 
This  exception  embraces  Jews,  Seventh  Day  Baptists,  and  it  may  be. 
some  other  religious  denominations.  The  object  of  the  statute  is  to 
protect  persons  keeping  the  Christian  Sabbath  as  a  day  of  holiness, 
from  disturbance  in  its  observance,  and  not  to  compel  the  performance 
of  religious  duties  as  such.  That  is  no  part  of  governmental  duty 
under  our  institutions.  Our  government  is  unlike  the  Brittish  Gov- 
ernment, as  that  government  combines  the  ecclesiastical  and  secular 
powers.  Its  constitution  is  based  upon  the  union  of  church  and  State, 
and  it  claims  and  exercises  the  power  to  enforce  the  faith  and  doc- 
trines of  the  established  church,  by  statutes  imposing  penalties  for 
failing  to  perform  religious  duties  and  requirements,  and  compelling 
all  to  contribute  support  to  the  State  church;  on  the  contrary,  how- 
ever, a  total  severance  of  church  and  State  is  one  of  the  great  control- 
ling foundation  principles  of  our  system  of  government.  The  spiritual 
welfare  of  our  people  is  left  entirely  to  the  hierarchy  of  the  various 
churches.  The  government  protects  all  alike  in  their  religious  beliefs 
and  unbeliefs.  It  is  no  part  of  the  function  of  our  government  to  pre- 
scribe and  enforce  religious  tenets.  The  great  purpose  of  the  forma- 
tion of  our  system  of  government  is  to  protect  the  people  in  the  en- 
joyment of  their  temporal  and  spiritual  rights  and  to  prohibit  crime,, 
vice  and  wrong  to  any  portion  of  the  community  and  to  pass  and  en- 
force laws  for  the  promotion  of  the  temporal  interests  of  the  people, 
and,  as  far  as  possible,  secure  their  temporal  welfare  and  happiness. 
Although  it  is  no  part  of  the  functions  of  our  system  of  government 
to  propagate  religion,  and  to  enforce  its  tenets,  when  the  great  body 
of  the  people  are  Christians,  in  fact  or  sentiment,  our  laws  and  in- 
stitutions must  necessarily  be  based  upon  and  embody  the  teachings  of 
the  Redeemer  of  mankind.  It  is  impossible  that  it  should  be  other- 
wise. And  in  this  sense,  and  to  this  extent,  our  civilization  and  in- 
stitutions are  emphatically  Christian,  but  not  for  the  purpose  of  com- 
pelling men  to  embrace  particular  doctrines  or  creeds  of  any  church,, 
or  to  support  one  or  another  denomination  by  public  burthens,  but  sim- 
ply to  afford  protection  to  all  in  the  enjoyment  of  their  belief  or  unbe- 
lief. But  the  State  has  the  unquestioned  power  to  suppress  crime, 
vice  and  immorality,  even  if  such  acts  are  claimed  to  be  the  exercise 
of  religious  belief. 

"The  legislature  is  absolutely  powerless  to  enforce  religious  doc- 
trines or  beliefs,  merely  as  such.  It  may  be  that  in  suppressing  crime, 
vice,  or  immorality,  it  may  incidentally  enforce  religious  doctrines. 
The  Christian  religion  forbids  all  crime,  vice  and  immorality,  and  good 
government  equally  requires  their  suppression.  They  are  suppressed 
by  the  government  because  required  for  the  general  welfare,  and  not 


MONTANA.  153- 

because  they  are  religious  doctrines In  all  countries  and  ages 

among  civilized  or  partially  civilized  peoples,  governments  have  set 
apart  days  of  rest,  recurring  at  short  periods.  This  has  been,  and  still 
is,  regarded  as  necessary  to  the  temporal  welfare  of  the  people,  as  a 
certain  amount  of  rest  is  regarded  as  absolutely  necessary  to  man  and 
animals  subjected  to  labor.  Considerations  of  public  policy  demanding 
such  periods  of  rest,  and  the  great  body  of  Christians  holding  the  ob- 
servance of  Sunday  to  be  a  religious  duty,  it  is  natural  that  the  law- 
making power,  as  a  matter  of  public  policy,  should  specify  Sunday  as 
the  day  of  rest,  thereby  conforming  public  policy  to  religious  senti- 
ment. But  that  Sunday  is  kept  as  a  holy  day  by  most  Christian  de- 
nominations neither  adds  to  nor  detracts  from  the  validity  of  the  en- 
actment. Had  any  other  day  of  the  week  been  selected,  the  enact- 
ment would  have  had  the  same  binding  force."     (107  111.  429,  1883.) 

In  the  case  of  the  Collins'  Ice  Cream  Company  v.  Richard 
H.  Stephens,  the  latitudinarian  character  of  the  law  was  set  forth 
in  the  following  words : 

"By  the  contract  plaintiff  agreed  to  devote  his  entire  time  and  at- 
tention to  the  business  of  the  defendant,  and  the  contract  is  presumed 
to  have  been  made  Avith  reference  to  the  usual  custom  of  that  kind  of 
business.  Whether  he  would  be  bound  to  work  on  Sunday  would  de- 
pend upon  the  manner  of  conducting  the  business  and  the  established 
custom.  A  contract  which  contemplates  labor  on  Sunday  not  tending 
to  disturb  the  peace  and  good  order  of  society  nor  constituting  a  vio- 
lation of  the  criminal  code  is  valid  and  enforceable."  (189  111.  200, 
1901.) 

The  difificiilties  in  the  way  of  a  uniform  enforcement  of  a 
statute  which  prohibits  only  what  disturbs  other  people  are  clear- 
ly presented  in  the  opinions  above  quoted.  What  disturbs  some 
will  not  be  regarded  as  a  disturbance  by  others. 

Some  of  the  opinions  here  given  render  a  weak  law  still 
weaker  while  others  have  features  that  are  highly  commendable. 

MONTANA.        (1895.) 

Chapter  VI.,  Title  IX.,  of  the  Statutes  of  Montana  treats  of 
"OfiPenses  against  Good  Morals."  The  following  sections  relate 
to  the  first  day  of  the  week : 

"530.  Every  person  who  on  Sunday  or  the  first  day  of  the  week 
keeps  open  or  maintains  or  aids  in  opening  or  maintaining  any  the- 
atre, play-house,  dance  house,  concert  saloon  or  variety  hall  is  guilty 
of  a  misdemeanor. 

"531.  It  is  unlawful  to  conduct  the  business  of  hair-cutting, 
shaving  or  shampooing,  or  to  open  barber  shops  for  the  doing  of  such' 
business,  on  Sunday. 


154  NEBRASKA. 

"532.  Any  person  violating  the  provisions  of  this  Act  is  guilty  of 
a  misdemeanor  and  upon  conviction  thereof  shall  be  fined  for  the  first 
offense,  not  less  than  fifteen  dollars  and  not  to  exceed  fifty  dollars  and 
for  any  subsequent  violation,  a  fine  not  less  than  twenty-five  dollars 
and  not  exceeding  one  hundi'ed  dollars  shall  be  imposed. 

"533.  Every  person  who  wilfully  disturbs  or  disquiets  any  as- 
semblage of  people  met  for  religious  worship,  by  noise,  profane  dis- 
course, rude  or  indecent  behaviour,  or  by  any  unnecessary  noise,  either 
within  the  place  where  such  meeting  is  held  or  so  near  it  as  to  disturb 
the  order  and  solemnity  of  the  meeting,  is  guilty  of  a  misdemeanor." 
(Vol.   4,   pp.   843,   844.) 

NEBRASKA.        (1903.) 

Chapter  XXIII.  of  the  Criminal  Code  of  Nebraska  is  entitl- 
•ed  "Miscellaneous  Offenses."'  Section  241  is  on  "Sabbath 
Breaking."     It  is  as  follows : 

•'If  any  person  of  the  age  of  fourteen  years  or  upward  shall  be 
found  on  the  first  day  of  th3  week,  commonly  called  Sunday,  sporting, 
rioting,  quarreling,  hunting,  fishing,  or  shooting,  he  or  she  shall  be 
fined  in  a  sum  not  exceeding  twenty  dollars,  or  be  confined  in  the 
county  jail  for  a  term  not  exceeding  twenty  days,  or  both,  at  the  dis- 
cretion of  the  court.  And  if  any  person  of  the  age  of  fourteen  years 
or  upward  shall  be  found  on  the  first  day  of  the  week,  commonly  called 
Sunday,  at  common  labor  (work  of  necessity  and  charity  only  ex- 
cepted), he  or  she  shall  be  fined  in  a  sum  not  exceeding  five  dollars; 
Provided,  nothing  herein  contained  in  relation  to  common  labor  on  said 
first  day  of  the  week,  commonly  called  Sunday,  shall  be  construed  to 
extend  to  those  who  conscientiously  do  observe  the  seventh  day  of 
the  week  as  the  Sabbath,  nor  to  prevent  families  emigrating  from 
travelling,  watermen  from  landing  their  passengers,  superintendents 
or  keepers  of  toll  bridges  or  toll  gates  from  attending  or  superintend- 
ing the  same,  or  ferrymren  from  conveying  travelers  over  the  water, 
or  persons  moving  their  families  on  such  days,  or  to  prevent  railroad 
■companies  from  running  necessary  trains."     (P.  1974.) 

Section  14  of  chapter  50  relates  to  liquor  selling  on  Sabbath.  It 
declares  that  ''Every  person  who  shall  sell  or  give  away  any  malt, 
spirituous  and  vinous  liquors  on  the  day  of  any  general  or  special 
election,  or  at  any  time  during  the  first  day  of  the  week,  commonly 
■called  Sunday,  shall  forfeit  and  pay  for  every  such  offense,  the  sum  of 
-one  hundred  dollars."     (p.   1045.) 

No  court  can  be  opened,  nor  any  judicial  business  transacted  on 
the  Sabbath,  except  to  instruct  a  jury  then  deliberating,  receive  a  ver- 
■dict  or  discharge  a  jury,  to  exercise  the  powers  of  a  singe  magistrate 
or  to  grant  or  refuse  a  temporary  injunction,     (p.  831.) 


NEBRASKA.  i55 

No  direct  assault  seems  to  have  been  made  on  the  constitu- 
tionahty  of  this  law,  but  its  constitutional  grounds  were  pre- 
sented in  some  measure  by  the  Supreme  Court  in  1892  in  the 
case  of  the  State  v.  O'Rourk.  The  defendants  were  arrested  for 
playing  base  ball  on  the  Sabbath.  Both  the  county  judge  and 
the  District  Court  held  that  playing  base  ball  on  the  Sabbath  is 
not  a  violation  of  the  law.  The  case  was  then  taken  to  the  Su- 
preme Court  and  this  opinion  was  reversed.  Chief  Justice  Max- 
well in  delivering-  the  opinion  with  which  all  the  judges  con- 
curred, said : 

•'All  free  governnK-nt  is  based  on  the  divine  law.  God  gave  the  ten 
commandments  to  Moses,  which  contain  the  rules  designed  to  apply  to 
the  whole  race.  Although  given  to  the  Israelites,  they  were  designed 
for  all  humanity."  "Christianity  is  woven  into  the  web  and  woof  of 
free  government  and  but  for  it  free  government  would  not  have  ex- 
isted, because  no  other  system  has  been  able  to  check  the  selfishness, 
arrogance,  cruelty  and  covetousness  of  the  race."  "As  a  Christian 
people,  therefore,  jealous  of  their  liberty  and  desiring  to  preserve  the 
same,  the  State  has  enacted  certain  statutes,  which,  among  other 
things,  in  effect,  recognize  the  fourth  commandment,  and  the  Christian 
religion  and  the  binding  force  of  the  teachings  of  the  Saviour.  Among 
these  is  the  statute  which  prohibits  sporting,  hunting,  etc.,  on  Sun- 
day." "The  law,  both  human  and  divine,  being  thus  in  favor  of  ab- 
staining from  sporting,  etc.,  on  Sunday,  is  a  reasonable  requirement 
and  should  be  enforced.  The  deliberate  violation  of  such  a  law,  there 
is  reason  to  believe  in  many  cases,  is  but  the  commencement  of  a 
series  of  offenses  that  lead  to  infamy  and  ruin;  and  in  any  event  the 
influence  upon  the  participants  themselves  has  a  tendency  to  break 
down  the  moral  sense  and  make  them  less  worthy  citizens." 

After  mentioning  the  immoral  acts  which  the  State  punishes,  the 
court  proceeds:  "These  cases  show  the  importance  felt  by  the  legisla- 
ture, of  evils  of  the  kind  named,  and  others,  by  means  of  which,  in  ad- 
dition to  wrongs  inflicted  on  the  persons  injured,  a  spirit  of  insubor- 
dination is  created  and  fostered  which  incites  to  evil  and  tends  to  sub- 
vert the  just  and  equal  rights  of  some  or  all.  In  addition  to  this,  every 
person  has  a  right  to  the  quiet  and  peace  of  a  rest  day.  He  has  also  a 
right  to  the  enforcement  of  the  law,  so  that  the  evil  example  of  the  de- 
fiance of  the  law  shall  not  be  set  before  his  children.  The  State  has  an 
interest  in  their  welfare  also,  in  order  that  they  may  become  useful 
citizens  and  worthy  and  honorable  members  of  society."  (35  Neb. 
614.) 

The  Supreme  Court  of  Nebraska  holds  that  'Neither  at  common 
law  nor  under  our  statute  is  a  contract  entered  into  on  Sunday  void 
for  that  reason."     (Horacek  v.  Keebler.  5  Neb.  355,  (1877.) 

When  the  day   for  performing  a  contract   falls  on   Sabbath,  that 


156  NEBRASKA. 

day  is  not  counted,  and  compliance  with  the  terms  of  the  contract  oiii 
the  next  day  is  deemed  in  law  a  performance,  but  when  a  contract  is 
to  be  fulfilled  within  a  given  number  of  days  intervening  Sabbaths  are 
counted.  Post  v.  Garrow,  18  Neb..  682,  (1886).  33  Neb.  649,  (1891.) 
Where  a  railroad  company  runs  trains  on  Sabbath  and  employees  are 
injured  through  negligence  of  the  company,the  company  is  not  exoner- 
ated because  the  accident  occurred  on  Sabbath  Johnson  v.  M.  P.  R.  R. 
Co.  18  Neb.  691   (1886). 

While  a  drug  store  may  be  kept  open  for  necessary  purposes,  the 
proprietor  may  not  engage  in  indiscriminate  trade  on  Sunday.  Persons 
who  believe  the  seventh  day  of  the  week  is  the  Sabbath,  but  do  not  sO' 
observe  it,  are  not  exempt  from  the  prohibitions  of  the  law.  (Liberman 
V,  State,  26  Neb.  465,  (1889.) 

Where  intoxicating  liquors  are  sold  or  given  away  on  Sabbath,  the 
principal  is  liable  though  not  personally  present.  Martin  v.  State,  30' 
Neb.  507,   (1890.) 

An  order  made  by  a  judge  on  Sabbath  is  void.  (Merchants  Nat'! 
Bank  of  Omaha  v.  Jaffray,  36  Neb.  218,  (1893.) 

When  grace  on  a  note  or  bill  expires  on  Sabbath,  it  is  due  on  Sat- 
urday, and  if  Saturday  is  a  legal  holiday  it  is  due  on  Friday.  (51  Neb.. 
707-715,  (1897.)  Judicial  business  cannot  be  transacted  on  Sabbath. 
(Deere  v.  Hodges,  59  Neb.  288,  (1899.) 

In  1902  the  Supreme  Court  rendered  a  decision  which  con- 
strues very  loosely  the  Nebraska  law  as  it  applies  to  sports.  That 
decision  declares  that  a  contract  to  furnish  one  performance, 
consisting  of  music,  dancing,  and  feats  of  contortion,  each  day  of 
the  week,  including  Sunday,  is  not  a  violation  of  the  law,  and 
the  legislature  having  expressed  the  policy  of  the  State  in  regard 
to  the  observance  of  the  Sabbath,  the  court  will  not  add  to  the 
restrictions  by  declaring  such  contract  contrary  to  public  policy. 
(Wirth  v.  Calhoun,  64  Neb.  316.) 

In  State  v.  King  the  Supreme  Court  of  Nebraska  noted  the 
distinction  between  Sabbath  and  mere  holidays,  declaring  as  fol- 
lows: 

"The  Creator  instituted  the  Sabbath  as  a  day  of  rest,  and  experi- 
ence has  shown  the  necessity  of  its  observance  by  mankind  generally, 
as  a  means  of  preserving  full  mental  and  physical  vigor.  Hence  at 
common  law,  courts  are  prohibited  from  transacting  business  on  Sun- 
day  No  such  reasons  exist,  however,  in  favor  of  holidays."     The 

court  held  that  when  a  legal  holiday  falls  on  the  first  day  of  the- 
week,  Monday  is  not  a  legal  holiday  as  to  the  holding  of  courts,  etc.,. 
but  only  as  to  the  presentation  and  demand  of  commercial  paper,. 
(Neb.  23,  540,  1888.) 


NEVADA.  157 

The  Nebraska  statute  is  weak  because  it  prohibits  neither 
lousiness  nor  annisenients  on  the  Lord's  day.  There  are  some 
•excellent  thini^s  in  sonic  of  the  opinions. 

NKVADA.        (1885.) 

"An  Act  for  the  better  observance  of  the  Lord's  day,"  is 
the  title  of  the  Sabbath  law  of  Nevada.     It  is  as  follows : 

"1.  No  person  shall  keep  open  any  play-house  or  theater,  race- 
ground,  cock-pit  or  play  at  any  game  of  chance  for  gain,  or  engage  in 
any  noisy  amusement,  on  the  first  day  of  the  week,  commonly  called 
Lord's  day. 

"2.  No  judicial  business  shall  be  transacted  by  any  court,  except 
deliberations  of  a  jury  who  have  received  a  case  on  a  week  day,  so 
■called,  and  who  may  receive  further  instructions  from  the  court,  at 
their  request,  or  deliver  their  verdict;  nor  any  civil  process  be  served 
by  any  certifying  or  attesting  officer,  nor  any  record  made  by  any  leg- 
ally appointed  or  elected  officer,  upon  the  first  day  of  the  week,  com- 
monly called  the  Lord's  day;  provided,  that  criminal  process  may  is- 
sue for  the  apprehension  of  any  person  charged  with  crime,  and  crim- 
inal examination  to  be  proceeded   with. 

"3.  Any  person  or  persons  violating  the  provisions  of  the  two  pre- 
•ceeding  sections  of  this  Act  shall  be  punished,  on  conviction  thereof, 
by  a  fine  of  not  less  than  thirty  dollars,  nor  more  than  two  hundred 
and  fifty  dollars  for  each  offense." 

Few  cases  under  this  law  have  reached  the  Supreme  Court.  In 
1880  it  was  decided  that  ''An  attachment  suit  can  be  commenced  and 
the  writ  served  on  Sunday  whenever  the  plaintiff,  or  some  person  in 
liis  behalf  makes  the  affidavit  that  it  will  be  too  late  to  wait  till  a 
subsequent  day."  Most  States  allow  the  issuing  and  serving  of  the 
writ,  but  not  the  commencement  of  the  suit. 

This  law  prohibits  neither  labor  nor  business,  and  only  noisy 
.amusements.  There  is  not  much  occasion  for  cases  for  the  courts  to 
arise. 

NKW   HAMPSHIRK.        (iSqI.) 

Chapter  271  of  the  New  Hampshire  Code  is  entitled,  "Of- 
fenses against  morality  and  Religion."  The  sections  relating  to 
the  Sabbath  have  the  sub-title,  "Disturbances  of  the  Lord's  day." 
They  are  as  follows  : 

"3.  No  person  shall  do  any  work,  business,  or  labor  of  his  secular 
calling,  to  the  disturbance  of  others,  on  the  first  day  of  the  week, 
■commonly  called  the  Lord's  day,  except  works  of  necessity  and  mercy, 
;and  the  making  of  necessary  repairs  upon  mills  and  factories  which 


158  yEW  HAMPSHIRE. 

could  not  be  made  otherwise  without  loss  to  operatives;  and  no  per- 
son shall  engage  in  any  play,  game  or  sport  on  that  day. 

"4.  No  person  shall,  on  the  "Lord's  day,  discharge  any  firearms 
for  sport,  or  in  the  pursuit  of  game,  nor  carry  a  firearm  in  a  field, 
highway  or  private  way,  while  in  the  pursuit  of  game  or  with  intent 
to  discharge  the  same  in  sport. 

"5.  No  person  shall  keep  his  shop,  warehouse,  cellar,  restaurant 
or  workshop  open  for  the  reception  of  company,  or  shall  sell  or  expose 
for  sale  any  merchandise  whatsoever  on  the  Lord's  day:  but  this  sec- 
tion shall  not  be  construed  to  prevent  the  entertainment  of  boarders, 
nor  the  sale  of  milk,  bread  and  the  necessaries  of  life,  nor  drugs  and 
medicines."     (p.   726.) 

BilLs,  etc.,  falling  due  on  Sabbath  are  payable  on  the  preceding: 
day. 

It  should  be  observed  that  the  New  Hampshire  Statute  ttses 
the  term,  "secular,"  instead  of  "ordinary,"  which  word  was  em- 
ployed in  the  Statute  of  Charles  II.  and  interpreted  to  allow  a 
person  to  perform  worldly  labor  provided  it  was  not  in  the  line 
of  his  ordinary  calling. 

In  1827,  the  Superior  Court  of  New  Hampshire,  said  that 
this  substitution  of  "secular"  for  "ordinary"  means  that  "any 
work,  labor  or  business  relating  to  secular  concerns,  works  of  ne^ 
cessity  and  mercy  excepted,"  is  prohibited." 

It  shotild  be  noted  also  that  the  phrase,  "to  the  disturbance 
of  other,"  was  not  a  part  of  the  old  law  in  New  Hampshire,  but 
was  added  in  the  early  part  of  the  last  century.  In  1848  the  Su- 
perior Court  gave  an  opinion  as  to  the  modifications  of  the  law 
made  by  this  addition.     The  Court  said : 

"The  old  law  not  only  protected  the  solemities  of  religion  from 
Interruption,  and  secured  the  public  in  their  peaceful  performance,  but 
also  reminded  the  individual  that  he  has  religious  duties  to  fulfill.  It 
tended  to  secure  to  him  time  and  opportunity  for  their  fulfillment  by 
prohibiting  him  from  performing  other  things,  and  induced  him  to 
turn  his  attention,  for  one  day  in  the  week,  to  religious  reflection,  by 
refusing  him  permission  to  distract  his  mind  by  occupying  himself 
with  his  worldly  affairs. 

"This  latter  object  the  Revised  Statute  does  not  attempt  to  attain, 
that  is,  it  does  not  have  in  view  the  good  effect  upon  the  individual, 
by  prohibiting  him  from  exercising  his  worldly  calling.  By  the  act 
of  1799  he  could  not  do  this  under  any  circumstances.  By  the  Revised 
Statute  he  may  do  it,  with  qualification,  a  condition,  and  that  is,  that 
it  be  not  to  the  disturbance  of  others.  This  provision  aims  only  at 
protecting  the  public  in  their  devotions  and  religious  reflections; 
others,  the  law  says,  shall  not  be  disturbed.     It  leaves  each  individual 


NEW  HAMPSHIRE.  159 

to  employ  himself  as  he  may  chose,  subject  only  to  this  limitation.     It 

does  not  aim  at  guarding  him  from  himself It  leaves  him  to  his 

own   conscience." 

In  this  same  opinion  the  court  spoke  as  follows  on  the  meaning  of 
the  phrase,  "to  the  disturbance  of  others."  "If  nothing  can  be  con- 
sidered a  disturbance  which  people  willingly  submit  to  and  take  part 
in,  then  the  legislature  did  not  intend  to  prohibit  any  assembly  of  per- 
sons, for  whatever  purpose,  provided  the  people  present  are  willing  ta 
give  up  their  religious  duties  and  take  part  in  whatever  is  done." 
"Upon  this  principle  a  horse-race  in  a  public  street  would  be  no  dis- 
turbance if  the  people  chose  to  desert  the  churches  and  assemble  on 
the  race-ground.  A  military  parade  on  the  Sabbath  would  not  be  pro- 
hibited if  the  bystanders,  or  those  who  heard  it,  preferred  military  to 
sacred  music.  A  theater  or  a  circus,  a  menagerie  or  a  political  caucus, 
would  no  more  be  disturbances  than  would  the  services  in  the  church. 
But  we  do  not  think  that  such  would  be  the  true  construction  of  the 
act."  The  court  declared  further  that  contracts  relating  to  secular 
matters  cannot  be  legally  made  on  the  Sabbath  because  two  or  more 
persons  are  thereby  disturbed.     (19  N.  H.  233.) 

The  party  who  would  prosecute  one  who  violates  the  Sabbath  law 
"must  not  only  allege  the  act  to  have  been  done  on  the  Lord's  day,  but 
he  must  allege  it  to  be  work,  labor,  or  business  of  the  secular  calling 
of  the  person  doing  it;  that  it  was  done  to  the  disturbance  of  others, 
and  that  it  was  not  a  work  of  necessity  or  mercy."  (Clough  v.  Shep- 
ard,  31  N.  H.  490.) 

In  the  case  of  Allen  v.  Deming  the  Supreme  Court  said: 

"In  the  judgment  of  many  persons,  such  a  law  is  impolitic,  and 
ought  never  to  have  been  enacted,  and  they  easily  reach  the  illogical 
result,  that  therefore  it  should  be  disregarded  by  those  whose  duty  it 
would  otherwise  be  to  enforce  it,  or  at  least  great  astuteness  may  be 
properly  exercised  to  defeat  its  operation.  The  law  is  alleged  to  be 
difficult  in  its  application  and  unjust  in  its  effects;  to  interpose  an  in- 
equitable defense  to  an  honest  demand;  to  interfere  unnecessarily  with 
freedom  of  opinion  and  of  action;  and  to  give  to  merely  formal  ob- 
servances the  high  sanction  of  the  lav/.  Some  tribunals  even  have 
seemed  to  consider  it  as  a  law  which  had  better  be  suffered  to  pass  in 
silence,  upon  the  ground  substantially  that  it  had  been  repealed  by 
public  opinion." 

"The  toleration  of  amusements  and  the  existence  of  fairs  in  Eng- 
land to  a  greater  or  less  degree  upon  the  Sabbath,  are  readily  ac- 
counted for  by  their  known  accordance  with  the  practice  of  Roman 
Catholic  countries,  among  which  was  England  until  the  Reformation 
in  the  reign  of  Henry  the  Eighth.  With  the  spread  of  the  reformed 
religion,  and  the  consequent  improvement  in  civilization,  the  views 
and  manners  of  the  people  changed  on  the  subject  of  the  national  ob- 
servance of  the  Sabbath,  and  in  all  Protestant  communitivS  laws  were 


^6o  NEW  HAMPSHIRE. 

■  enacted  to  secure  it,  varying  in  their  provisions  with  the  peculiarities 
of  the  people." 

The  court  held  that  a  note  given  on  Sabbath  is  void.  "A  party 
should  not  be  heard  before  a  tribunal  whose  duty  it  is  to  declare  the 
law  when  his  cause  of  action  arises  from  a  transgression  of  the  law." 
(14  N.  H.  133,  1843.) 

The  sale  of  a  note  on  Saturday  but  perfected  on  Sabbath  is  ille- 
gal.    (Smith  V.  Foster,  4l  N.  H.  215,  18G0.) 

In  the  case  of  Woodman  v.  Hubbard,  in  1852,  the  Superior 
Court  gave  an  opinion  as  to  contracts  made  on  Sabbath  that  de- 
serves notice.  In  this  case  the  defendant  hired  a  horse  from  the 
plaintiff  to  drive  to  a  specified  place  and  return.  He  drove  sev- 
eral miles  further  and  returned  the  same  day  and  as  a  result  the 
horse  died.  The  plaintiff'  sought  to  recover  damages  for  the 
value  of  the  horse.  The  defendant  made  the  plea  that  the  whole 
transaction  took  place  on  the  Sabbath,  that  the  contract  was  void 
and  could  not  be  enforced.     The  Court  said : 

"It  necessarily  follows  from  this  view  of  the  case,  that  a  man  is 
wholly  without  remedy  for  any  injury  that  may  be  done  to  the  horse 
he  lets  on  Sunday,  in  violation  of  law,  if  the  necessity  of  showing  his 
illegal  contract  will  preclude  his  recovery.  Though  the  property  is 
conceded  to  remain  in  the  plaintiff,  he  has  no  remedy  to  enforce  his 
right,  because  he  cannot  show  it  without  showing  the  illegal  contract 
of  letting.  And  in  all  the  numerous  cases  where  horses  were  illegally 
let  on  Sunday,  the  hirer  might  with  perfect  impunity  retain  and  sell 
them.  This  appears  to  us  to  be  pushing  the  application  of  a  well 
settled  principle  to  an  unnecessary  and  extravagant  length,  not  re- 
quired nor  warranted  by  the  general  current  of  authorities.  (5  Fos- 
ter   67.) 

Previous  to  1799  the  law  of  New  Hamsphire  prohibited 
travelling  "on  the  Lord's  day,  between  sun  rising  and  sun  set- 
ting, unless  from  necessity,  or  to  attend  public  worship,  visit  the 
sick  or  do  some  office  of  charity." 

In  an  opinion  rendered  in  1857  '^^  the  case  of  Corey  v.  Bath, 
the  Supreme  Court  said  : 

"Travelling  on  Sunday,  in  an  orderly  and  decent  manner,  to  visit 
a  parent,  is  not  to  be  regarded  as  a  criminal  recreation,  within  the 
meaning  of  the  statute.  Travelling  on  Sunday,  in  the  prosecution  of 
secular  business,  to  the  disturbance  of  others,  would  be  within  the 
other  branch  of  the  statute."     (35  N.  H.  530.) 

In  1866  in  deciding  that  the  execution  of  a  will  on  the  Sab- 
bath is  not  illegal,  the  Supreme  Court  spoke  as  follows  on  the 
same  matter : 


NE  W  HA  MPSHIRE.  1 6 1 

"The  changes  introduced  by  the  Revised  Statutes  were  designed 
to  withdraw  all  legislative  control  over  the  acls  and  conduct  of  the  in- 
dividual citizen,  so  far  as  they  did  not  interfere  with  the  public  observ- 
ance of  the  Lord's  day — wisely  holding  that  in  respect  to  acts  of  a  pri- 
vate nature  not  calculated  to  disturb  others  in  the  exercise  of  the  ap- 
propriate duties  of  the  day,  the  individual  conscience  alone  should  de- 
cide. At  the  same  time  we  perceive  no  intention  to  diminish  the  re- 
straints upon  those  unnecessary  worldly  acts  which  interfere  with  the 
public  observance  of  the  Lord's  day;  and  therefore  such  acts  when 
done  openly  or  publicly  in  the  presence  of  others  are  prohibited,  be- 
cause they  are  calculated  to  turn  the  attention  of  those  who  are  pres- 
ent from  their  appropriate  religious  duties  to  matters  of  mere  worldly 
concern,  and  thus  to  disturb  them  in  the  sense  in  which  the  term  is 
used  in  the  statute.  The  policy  of  the  act  is  still  to  encourage  the  due 
observance  of  the  Sabbath,  as  a  day  of  rest  from  worldly  labors  and 
iraffic,  and  of  devotion  to  religious  duties;  and  although  it  is  left  to 
the  conscience  of  each  citizen  to  decide  whether  he  shall  himself  in 
private  perform  any  secular  labor,  he  must  take  care  to  do  no  such 
labor  in  a  manner  to  turn  the  attention  of  others  from  their  appropri- 
-ate  duties  and  fix  it  upon  worldly  business  or  traffic.  The  purpose  is 
to  give  every  citizen  an  opportunity  to  discharge  the  religious  duties 
Incumbent  upon  him  on  that  day,  without  being  diaturbed,  or  having 
Tiis  attention  withdrawn,  by  the  career  of  woi'ldly  traffic  or  labor;  and 
it  is  wholly  immaterial  whether  it  be  so  withdrawn  with  his  own  con- 
-sent  or  not,  inasmuch  as  such  acts  are  equally  subversive  of  that  pub- 
lic order  and  decency  which  the  law  designed  to  promote,  whether  as- 
sented to  or  not  by  the  persons  present."  (George  v.  George,  47  N.  H, 
27.) 

The  case  of  Chenette  v.  Techan  shows  that  there  are  serious  com- 
•plications  growing  out  of  these  inconsistent  opinions.  In  this  case  the 
defendant  hired  a  horse  and  buggy  of  the  plaintiff  for  a  pleasure 
drive  on  the  Lord's  day.  Through  carelessness  of  the  driver  the  buggy 
was  damaged.  The  owner  could  not  recover  because  the  contract  was 
made  on  the  Lord's  day.  Taking  the  drive  it  seems  was  no  violation 
of  the  law,  but  making  the  contract  was.     (63  N.  H.  149,  1884.) 

An  illustration  of  the  methods  followed  to  defraud  by  taking  ad- 
vantage of  the  Sabbath  law  is  found  in  Jameson  v.  Carpenter.  The 
plaintiff  labored  for  the  defendant  at  a  fixed  price.  One  Sabbath 
shortly  after  he  began  work,  the  defendant  paid  him  $20.50,  when  only 
$7.25  was  due.  Plaintiff  tried  to  collect  wages  a  second  time  on  the 
plea  that  the  payment  on  Sabbath  was  illegal.  The  plea  was  not  sus- 
tained.    (68  N.  H.  62.) 

While  the  law  of  this  State  prohibits  only  work,  labor  or 
business  that  disturbs  others,  an  opinion  by  the  Supreme  Court 
greatly  strengthens  this  clause,  and  deprives  it  of  mo.st  of  its 
liarmful  effects. 


i62  NEW  MEXICO. 

NEW    MEXICO.        (1897.) 

The  Sabbath  law  of  New  Mexico  is  found  in  Chapter  V.^. 
Title  IX.,  relating  to  "Crimes  and  Offenses."  It  is  entitled 
"Sabbath  Observance."     The  law  follows: 

"1368.  Any  person  or  persons  who  shall  be  found  on  the  first  day 
of -the  week,  called  Sunday,  engaged  in  any  sports,  or  in  horse  racing, 
cock  fighting,  or  in  any  other  manner  disturbing  any  worshiping  as- 
sembly, or  private  family,  or  attending  any  public  meeting,  or  public 
exhibition,  or  engaged  in  any  labor,  except  works  of  necessity,  charity 
or  mercy,  shall  be  punished  by  a  fine  not  exceeding  fifteen  dollars,  nor 
less  than  five  dollars,  or  imprisonment  in  the  county  jail  of  not  more 
than  fifteen  days,  nor  less  than  five  days,  in  the  discretion  of  the  court, 
upon  conviction  before  any  district  court. 

"1370.  It  shall  be  lawful  in  cases  of  necessity  for  farmers  and 
gardeners  to  irrigate  their  lands,  and  when  necessary  to  preserve  the 
same,  to  remove  grain  and  other  products  from  the  fields  on  said  day; 
and  nothing  in  this  act  shall  be  construed  to  prevent  cooks,  waiters 
and  other  employes  of  hotels  and  restaurants,  and  of  butchers  and 
bakers,  from  performing  their  duties  on  said  day. 

1371  declares  that  no  civil  process  shall  be  issued  or  served  on 
Sabbath,  except  when  there  is  danger  of  loss  or  serious  inconvenience. 

1369  declares  that  fines  collected  under  this  act  shall  be  applied 
to  the  school  fund.  Sunday  for  the  purpose  of  this  act  is  the  time  be- 
tween sunrise  and  midnight,     (p.  396.) 

The  Supreme  Court  of  New  Mexico  has  decided  that  "There  is  no 
law  in  this  territory  invalidating  a  contract  of  enlistment  by  a  soldier 
entered  into  on  Sunday."     (1  N.  M.  172.) 

In  1884  the  Supreme  Court  gave  its  opinion  that  •a  veridct  rendered 
on  Sabbath  is  valid.  The  Court  said:  "Is  it  to  be  said  that  the 
sanctity  of  the  day  is  violated  by  discharging  from  unnecessary  con- 
finement twelve  citizens  who  have  completed  important  and  honorable 
service  for  the  State?  Is  it  desecration  to  permit  the  return  to  their 
homes  and  join  with  their  families  in  such  observation  of  the  day  as 
may  seem  good  to  their  consciences?  We  think  not;  and  are  therefore 
clearly  of  the  opinion  that  the  return  of  the  verdict  in  this  case  on 
Sunday  was  proper."     (3  N.  M.  76.) 

The  law^  of  this  territory  does  not  prohibit  the  transaction  of 
business.  The  judicial  opinions  are  few  and  add  little  to  the 
arjg-ument  for  Sabbath  laws. 

OREGON.      (1887.) 
The  title  of  Chapter  VIII.,  of  the  Oregon  Code,  in  which  the 


OREGON.  163 

sections  relating  to  the  Sabbath  are  found  is,  "Crimes  against 
public  policy."     These  sections  are  the  following: 

"1890.  If  any  person  shall  keep  open  any  store,  shop,  grocery, 
ball-alley,  billiard-room,  or  tippling-house,  for  the  purpose  of  labor  or 
traffic,  or  any  place  of  amusement,  on  the  first  day  of  the  week,  com- 
monly called  Sunday  or  Lord's  day,  such  person,  upon  conviction  there- 
of, shall  be  punished  by  fine  not  less  than  five  nor  more  than  fifty  dol- 
lars; provided,  that  the  above  provision  shall  not  apply  to  the  keepers 
of  drug  stores,  doctor  shops,  undertakers,  livery  stable  keepers,  bar- 
bers, butchers  and  bakers;  and  all  circtimstances  of  necessity  and 
mercy  may  be  pleaded  in  defense,  which  shall  be  treated  as  questions 
of  the  fact  for  the  jury  to  determine,  when  the  offense  is  tried  by  jury." 
(Vol.  1,  pp.  957,  958.) 

"1896.  If  any  person  shall  serve  or  execute  any  civil  process  on 
a  Sunday  or  thj  Lord's  day,  such  service  shall  be  void,  and  such  per- 
son, upon  conviction  thereof,  shall  be  punished  by  fine  not  less  than 
five  nor  more  than  fifty  dollars."    (Vol.  1,  p.  959.) 

"1909.  No  person  shall  keep  open  any  house  or  room  in  which 
intoxicating  liquor  is  kept  for  retail,  on  the  first  day  of  the  week,  com- 
monly called  Stinday,  or  give,  or  sell,  or  otherwise  dispose  of  intoxi- 
cating liquors  on  that  day;  any  person  violating  this  section  shall  be' 
fined  in  any  sum  not  exceeding  twenty-five  nor  less  than  ten  dollars 
for  each  offense;  and  such  fine  to  be  for  the  use  of  common  schools 
in  the  county  in  which  the  offense  was  committed;  provided,  that  this 
section,  so  far  as  it  prohibits  keeping  open  a  house  or  room,  shall  not 
apply  to  tavern-keepers."     (Vol.  1,  pp.  962,  963.) 

Arrests  cannot  be  made  on  Subbath  unless  the  crime  charged  be 
a  felony,  or  a  case  of  a  misdemeanor  unless  upon  the  direction  of  the 
magistrate,  indorsed  upon  the  warrant. 

Until  1901  barbering  on  Sabbath  was  permitted,  but  the  following 
act  was  passed  February  11,  of  that  year. 

"Be  it  enacted  by  the  Legislature  Assembly  of  the  State  of  Oregon. 

"1.  That  it  shall  be  a  misdemeanor  for  any  person  or  persons  to 
carry  on  the  business  of  barbering  on  Sunday  in  Oregon." 

Section  2  fixes  the  penalty  for  the  first  offense  at  ten  dollars  fine 
or  imprisonment  in  the  county  jail  for  five  days,  and  for  the  second  of- 
fense a  fine  of  not  less  than  twenty-five  nor  more  than  fifty  dollars  may- 
be imposed,  or  imprisonment  for  not  less  than  ten  nor  more  than 
twenty-five  days. 

It  is  lawful  to  give  instruction  to  a  jury,  deliberating  on  a  verdict,. 
on  Sabbath;  to  receive  a  verdict  or  discharge  a  jury;  to  exercise  the 
power  of  a  magistrate  in  a  criminal  action  or  in  a  proceeding  of  a  crim- 
inal nature. 

The  Supreme  Court  of  Oregon  has  decided  that  an  indictment  dated 
on  Sabbath  is  not  void.     In  the  case  in  which  this  opinion  was  given^ 


x64  '  WASHJNGTON. 

a  man  had  been  indicted,  tried  and  condemned  for  the  ci'ime  of  burg- 
larly.     The  indictment  was  dajed  on  Sabbath.     (16   Ore.  105.) 

A  notice  given  on  Sabbath  to  produce  papers  at  a  trial  is  good. 
(28  Ore.  168.) 

In  1897  the  Supreme  Court  gave  an  opinion  of  considerable  value 
in  Ex  parte  Tlce.  In  this  case  in  the  lower  Court,  the  jury  failing  to 
agree  was  discharged  on  Sabbath,  the  plaintiff  having  given  his  con- 
sent. A  number  of  cases  are  cited  to  confirm  the  position  "that  Sun- 
day at  common  law  was  dies  non  juridicus.."  The  Court  then  says: 
"Such  being  the  rule  at  common  law  the  right  to  perform  any  judicial 
act  on  Sunday  must  be  sought  for  in  the  act  conferring  it."  The  con- 
sent of  the  plaintiff  to  the  discharge  of  the  jury  is  declared  to  be  with- 
out merit.  As  "the  public  has  an  interest  in  the  observance  of  Sunday 
as  a  day  of  rest,  and  a  right  to  see  that  it  shall  riot  be  desecrated  ex- 
cept incases  of  urgent  need,  plaintiff  could  not  waive  the  public  right." 
(32  Or.  179.) 

In  the  case  of  Wachsmuth  v.  Routledge  the  court  held  that  where 
a  record  was  ordered  to  be  filed  on  November  14,  which  was  Sabbath, 
-and  it  was  filed  on  the  15,  the  filing  was  in  time. 

The  weakness  of  this  law  Hes  in  its  failure  to  prohibit  labor 
and  in  making-  needless  exceptions. 

WASHINGTON.        (189I.) 

The  Sabbath  law  of  Washington  is  found  in  the  Criminal 
Code,  Chapter  III.,  entitled  "Of  Crimes  Against  the  Public 
Peace.'The  sections  relating  to  the  Sabbath  are  the  following: 

"98.  If  any  person  be  found  on  the  first  day  of  the  week,  com- 
monly called  Sunday,  engaged  in  any  riot,  or  offering  to  fight,  horse- 
racing,  or  dancing,  whereby  any  worshipping  assembly  or  private 
family  are  disturbed,  every  person  so  offending  shall  on  conviction  be 
fined  in  a  sum  not  to  exceed  one  hundred  dollars,  to  be  recovered  be- 
fore any  justice  of  the  peace  in  the  county  where  such  offense  is  com- 
mitted, and  shall  be  committed  to  the  jail  of  such  county  until  the  said 
line,  together  with  the  costs  of  prosecution,  shall  be  paid."     (p.  680.) 

"210.  Any  person  who  shall  keep  open  any  play-house  or  theater, 
race-ground,  cock-pit,  or  play  at  any  game  of  chance  for  gain,  or  en- 
gage in  any  noisy  amusements,  or  keep  open  any  drinking  or  billiard 
saloon,  or  sell  or  dispose  of  any  intoxicating  liquors  as  a  beverage, 
on  the  first  day  of  th9  week,  commonly  called  Sunday,  shall,  upon  con- 
viction thereof,  be  punished  by  a  fine  not  less  than  thirty  dollars  nor 
more  than  two  hundred  and  fifty  dollars.  All  fines  collected  for  viola- 
tion of  this  section  shall  be  paid  into  the  common  school  fund."     (p. 

711.) 

"211.  It  shall  be  unlawful  for  any  person  or  persons  of  this  State 
to  open  on  Sunday  for  the  purpose  of  trade  or  sale  of  goods,  wares 


WASJ1L\GT0X.  165 

and  merchandise,  any  shop,  store,  or  buihling  or  place  of  business 
whatever;  provided,  that  this  section  shall  apply  to  hotels  only  in  so 
far  as  the  sale  of  intoxicating  liquors  is  concerned,  and  shall  not  ap- 
ply to  drug-stores,  livery-stables,  or  undertakers.  Any  person  or  per- 
sons violating  this  section  shall*  be  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  fined  in  any  sum  not  less  than  twenty-five 
dollars,  nor  more  than  one  hundred  dollars."     (p.  711.) 

It  has  been  held  by  the  Supreme  Court  of  Washington  that  under 
the  provisions  of  the  act  of  Congress  relating  to  the  protection  of 
salmon  in  the  waters  of  Alaska,  fishing  in  those  waters  on  Sabbath  is 
not  illegal.  A  person  making  a  contract  with  a  company  as  a  fisher- 
man in  which  the  Sabbath  is  not  excepted  is  bound  to  fish  on  Sabbath. 
(4  Wash.  689.) 

It  has  been  held  that  the  Washington  laws  relating  to  the  observ- 
ance of  the  Sabbath  ''do  not  purport  to  prohibit  the  transaction  of 
business  or  to  render  ordinary  business  transactions  void.  (Main  v. 
Johnston,  7  W.  321.)  In  the  case  of  State  v.  Binnard  it  was  held  ta 
be  unlawful  to  keep  a  saloon  open  on  the  Sabbath.     (21  W.  349.) 

The  law  against  opeining  shops  for  trade,  etc.,  does  not  apply  to 
barber  shops.     (10  W.  166.) 

Rent  falling  due  on  Sabbath  cannot  be  collected  till  the  following 
day.     (11  W.  296.) 

An  ordinance  of  a  city  prohibiting  barbers  from  pursuing  their 
calling  on  Sabbath  for  compensation,  is  void  as  an  act  of  special  legis- 
lation.    (15  W.  296.) 

If  this  statute  included  la])or  under  its  prohibitory  clause  it 
would  be  an  admirable  law. 


CHAPTER   VI. 

NO  SABBATH  LAWS  IN  TWO  STATES  AND  ONE 
^  TERRITORY. 

Neither  Arizona,  California  nor  Idaho  has  a  Sabbath  law. 
The  statutes  must  be  examined,  however,  to  learn  the  legal 
status  of  the  first  day  of  the  week. 

*     ARIZONA.       (19OI.) 

The  statutes  of  Arizona  contain  the  following : 
"Sec.  2709.     Sunday,  the  first  day  of  January,  the  twenty-second 
day  of  February,  the  thirtieth  day  of  May,  the  fourth  day  of  July,  the 
twenty-fifth  day  of  December,  the  day  on  which  a  general  election  is 
held,  Thanksgiving  day,  and  Arbor  day,  shall  each  and  all  be  holidays. 
"2710.     Public  oflices  shall  not  be  open  on  holidays. 
"2711.     No  court  of  justice  shall  be  open,  nor  shall  any  judicial 
business  be  transacted  on  any  legal  holiday,  except  for  the  following 
purposes: 

1.  To  give,  upon  their  request,  instructions  to  a  jury,  when  de- 
liberating on  their  verdict. 

2.  To  receive  a  verdict  or  discharge  a  jury. 

3.  For  the  exercise  of  the  powers  of  a  magistrate  in  a  criminal 
action;  Provided,  that  injunctions,  attachments,  claim  and  delivery  and 
writs  of  prohibition  may  be  issued  and  served  on  any  day."  (pp.  721, 
722.) 

166 


CALIFORNIA.  167 

CAUFORNIA.        (1905.) 

California  contributes  an  exceedingly  interesting  and  in- 
structive chapter  to  the  history  of  the  struggle  on  the  Sabbath 
question.  In  April.  1858,  the  legislature  of  this  State  passed 
an  act  entitled  "An  Act  for  the  better  observance  of  the  Sab- 
bath." In  the  same  month  the  Supreme  Court  in  Ex  parte  New- 
man declared  the  act  unconstitutional.  Chief  Justice  Terry  an- 
nounced the  opinion  of  the  Court.  Mr.  Justice  Burnette  gave 
a  supplementary  opinion  in  which  he  expressed  his  agreement 
with  Judge  Terry's  opinion,  but  not  with  his  argument.  The 
court  held  that  the  law  was  in  conflict  with  the  first  and  fourth 
sections  of  Article  first  of  the  Constitution,  which  forbid  discrim- 
ination or  preference  in  religion,  and  that  the  enforced  observ- 
ance of  a  day  held  sacred  by  any  sect  is  a  discrimination  in  favor 
of  that  sect,  and  a  violation  of  the  religious  freedom  of  others. 
It  was  declared  that  when  the  citizen  is  compelled  by  the  legis- 
lature to  do  any  affirmative  religious  act,  or  to  refrain  from  doing 
anything  because  it  violates  simply  a  religious  principle  or  observ- 
ance, the  act  is  unconstitutional.  It  was  asserted  that  if  the  leg- 
islature can  prescribe  the  days  of  rest,  it  would  seem  that  the 
same  power  can  prescribe  the  hours  to  work,  rest  and  cat. 

Judge  Terry,  in  his  opinion,  called  attention  to  the  title  of 
the  act  and  declared  that  there  is  no  expression  in  the  act  under 
consideration  which  can  lead  to  the  conclusion  that  it  was  in- 
tended as  a  civil  rule,  as  contradistinguished  from  a  law  for  the 
benefit  of  religion.  It  is  called  "An  act  for  the  better  observance 
of  the  Sabbath,"  and  the  prohibitions  in  the  body  of  the  act  are 
confined  to  the  'Christian  .Sabbath.'  " 

He  denied  the  necessity  for  laws  protecting  men  in  the  en- 
joyment of  periods  of  rest.     He  said  : 

''When  we  come  to  inquire  what  reason  can  be  given  for  the  claim 
of  power  to  enact  a  Simdaj'^  law,  we  are  told,  looking  at  it  in  its  pure- 
ly civil  aspect,  that  it  is  absolutely  necessary  for  the  benefit  of  his 
health  and  the  restoration  of  his  powers,  and  in  aid  of  this  great  social 
necessity,  the  legislature  may,  for  the  general  convenience,  set  apart 
a  particular  day  of  rest,  and  require  its  observance  by  all. 

"This  argument  is  founded  on  the  assumption  that  mankind  are  in 
th  ^  habit  of  working  too  much,  and  thereby  entailing  evil  upon  society, 
an!  that  without  compulsion  they  will  not  seek  the  necessary  repose 
which  their  exhausted  natures  demand.     This  to  us  is  a  new  theory. 


i68  CALIFORNIA. 

and  is  contradicted  by  the  history  of  the  past  and  the  observations  of 
the  present.  We  have  heard,  in  all  ages,  of  declamations  and  re- 
proaches against  the  vice  of  indolence,  but  we  have  yet  to  learn  that 
there  has  ever  been  any  general  complaint  of  an  intomperate,  vicious, 
unhealthy  or  morbid  industry.  On  the  contrary,  we  know  that  man- 
kind seek  cessation  from  toil  from  the  natural  influences  of  self-preser- 
vation, in  the  same  manner  and  as  certainly  as  they  seek  slumber,  re- 
lief from  pain,  or  food  to  appease  their  hunger." 

He  announced  as  a  basis  on  which  to  rest  his  argument,  the  social 
compact  theory  of  government.  On  this  point  he  said,  ''When  societies 
are  formed  each  individual  surrenders  certain  rights,  and  as  an  equiva- 
lent for  that  surrender  has  secured  to  him  the  enjoyment  of  certain 
others  appertaining  to  his  person  and  property,  without  the  protection 
of  which  society  cannot  exist."  He  contended  that  the  enactment  of 
a  Sabbath  law  is  an  unwarranted  limitation  placed  upon  the  rights- 
which  the  government  is  bound  to  protect.  He  declared  that  when- 
ever the  legislature  attempts  to  fix  hours  for  rest  and  labor,  "it  leaves 
its  legitimate  sphere,  and  makes  an  iucursion  into  the  realms  of  physi- 
ology; and  its  enactments,  like  the  sumptuary  laws  of  the  ancients, 
which  prescribe  the  mode  and  texture  of  people's  clothing,  or  similar 
laws  which  might  prescribe  and  limit  our  food  and  drink,  must  be  re- 
garded as  an  invasion,  without  reason  and  necessity,  of  the  natural 
rights  of  the  citizen,  whicli  are  guaranteed  by  the  fundamental  law. 
The  truth  is,  however  much  it  may  be  disguised,  that  this  one  day  of 
rest  is  a  purely  religious  idea.  Derived  from  the  Sabbath  institutions 
of  the  ancient  Hebrew  it  has  been  adopted  into  all  the  creeds  of  suc- 
ceeding religious  sects  throughout  the  civilized  world If  the  leg- 
islature have  the  authority  to  appoint  a  time  of  compulsory  rest,  we 
should  have  no  right  to  interfere  with  it,  even  if  they  required  a  cessa- 
tion from  toil  for  six  days  in  the  week  instead  of  one.  If  they  possess 
this  power  it  is  without  limit,  and  may  extend  to  the  prohibition  of  all 
occupations  at  all  times." 

If  the  Judge  had  grasped  and  heeded  the  principle,  so  fre- 
quently announced  by  other  judges,  that  the  Sabbath  is  a  civil 
institution,  he  would  have  been  restrained  from  such  folly.  When 
a  statute  law  grows  out  of  a  custom  it  recognizes  that  custom 
as  it  exists.  If  it  were  the  custom  of  the  people  to  rest  six  days 
of  the  week  and  to  labor  only  one,  the  law  would  take  note  of  the 
custom  and  embody  it  in  its  mandates.  The  power  of  the  legis- 
lature is  not  an.  arbitrary  power  to  be  wielded  in  a  whimsical 
manner,  but  a  power  limited  and  controlled  both  by  the  written 
constitution  and  the  common  law. 


CALIFORNIA.  169, 

Had  the  judge  held  right  views  on  the  theory  of  government 
he  would  not  have  soiled  his  ermine  with  the  mire  of  the  social 
compact  philosophy. 

A  few  sentences  from  the  dissenting  opinion  of  Judge  Field 
should  here  be  given  both  because  of  their  intrinsic  merit  and  be- 
cause this  opinion  was- adopted  a  few  years  later  as  the  opinion 
of  the  court.     Judge  Field  said : 

"The  petitioner  is  an  Israelite,  engaged  in  the  sale  of  clothing,  and 
his  complaint  is,  not  that  his  religious  profession  or  worship  is  inter- 
fered with,  but  that  he  is  not  permitted  to  dispose  of  his  goods  on 
Sunday;  not  that  any  religious  observance  is  imposed  upon  him,  but 
that  his  secular  business  is  closed  on  a  day  on  which  he  does  not  think 
proper  to  rest.  In  other  words,  the  law,  as  a  civil  regulation,  by  the 
generality  if  its  provisions,  interrupts  his  acquisitions  on  a  day  which 
does  not  suit  him.  The  law  treats  of  business  matters,  not  religious 
duties.  In  fixing  a  day  of  rest,  it  establishes  only  a  rule  of  civil  con- 
duct. In  limiting  its  command  to  secular  pursuits  it  necessarily  leaves 
religious  profession  and  worship  free.  It  is  absurd  to  say  that  the  sale 
of  clothing,  or  other  goods,  on  Sunday,  is  an  act  of  religious  worship; 
it  follows  that  the  inhibition  of  such  sales  does  not  interfere  with  either. 

The  legislature  possesses  the  undoubted  right  to  pass  laws  for 

the  preservation  of  health  and  the  promotion  of  good  morals,  and  if 
it  is  of  opinion  that  periodical  cessation  from  labor  will  tend  to  both, 
and  thinks  proper  to  carry  its  opinion  into  a  statutory  enactment  on 
the  subject,  there  is  no  power,  outside  of  its  constituents,  which  can 
sit  in  judgment  on  its  action.  It  is  not  for  the  judiciary  to  assume  a 
wisdom  which  it  denies  to  the  legislature,  and  exercise  a  supervision- 
over  the  discretion  of  the  latter.  It  is  not  the  province  of  the  judiciary 
to  pass  upon  the  wisdom  and  policy  of  legislation ;  and  when  it  does  so, 
it  usurps  a  power  never  conferred  by  the  Constitution. 

"It  is  no  answer  to  the  requirements  of  the  statute  to  say  that 
mankind  will  seek  cessation  from  labor  by  the  natural  influences  of 
self-preservation.  The  position  assumes  that  all  men  are  independent, 
and  at  liberty  to  work  whenever  they  choose.  Whether  this  be  true 
or  not  in  theory,  it  is  false  in  fact;  it  is  contradicted  by  every  day's 
experience.  The  relations  of  superior  and  subordinate,  master  and 
servant,  principal  and  clerk,  always  have  and  always  will  exist.  La- 
bor is  in  a  degree  dependent  upon  capital,  and  unless  the  exercise  of 
the  power  which  capital  affords  is  restrained,  those  who  are  obliged  to 
labor  will  not  possess  the  freedom  for  rest  which  they  would  otherwise 
exercise.  The  necessities  for  food  and  raiment  are  imperious;  and 
the  exactions  of  avarice  are  not  easily  satisfied.  It  is  idle  to  talk  of  a 
man's  freedom  to  rest  when  his  wife  and  children  are  looking  to  his 
daily  labor  for  their  daily  support.  The  law  steps  in  to  restrain  the 
power  of  capital.     Its  object  is  not  to  protect  those  who  can  rest  at 


I70  CALIFORNIA. 

their  pleasure,  but  to  afford  rest  to  those  who  need  it,  and  who,  from 
the  conditions  of  society,  could  n6t  otherwise  obtain  it.  Its  aim  is  to 
prevent  the  physical  and  moral  debility  which  spring  from  uninter- 
rupted labor;  and  in  this  respect  it  is  a  beneficent  and  merciful  law. 
It  gives  one  day  to  the  poor  and  dependent,  from  the  enjoyment  of 
which  no  capital  or  power  is  permitted  to  deprive  them.  It  is  theirs 
for  repose,  for  social  intercourse,  for  moral  culture,  and,  if  they  choose, 
for  divine  worship.  Authority  for  the  enactment  I  find  in  the  great 
object  of  all  government,  which  is  protection. 

"The  fact  that  the  civil  institution  finds  support  in  the  religious 
opinions  of  the  vast  majority  of  the  people  of  California  is  no  argument 
against  its  establishment. 

"It  would  be  fortunate  for  society  if  all  wise  rules  obtained  a  ready 
obedience  from  the  citizens,  not  merely  from  the  requirements  of  the 
law,  but  from  conscienscious  or  religious  convictions  of  their  obliga- 
tion. The  law  against  homicide  is  not  less  wise  and  necessary  because 
the  divine  command  is,  'Thou  slialt  do  no  murder.'  The  legislation 
against  perjury  is  not  the  less  useful  and  essential  for  the  due  admin- 
istration of  justice  because  the  injunction  comes  from  the  Most  High, 
'Thou  Shalt  not  bear  false  witness  against  thy  neighbor.'  The  establish- 
ment by  law  of  Sunday  as  a  day  of  rest  from  labor  is  none  the  less  a 
beneficient  and  humane  regulation,  because  it  accords  with  the  divine 
precept  that  upon  that  day  'thou  shalt  do  no  manner  of  work;  thou, 
and  thy  son,  and  thy  daughter,  thy  man-servant  and  thy  maid-servant, 
thy  cattle,  and  thy  stranger  that  is  within  thy  gates.'  " 

In  reply  to  the  argument  of  Mr.  Justice  Terry  based  upon  the  use 
of  the  terms,  "Sabbath"  and  "Christian  Sabbath,"  employed  in  the 
title  and  in  the  body  of  the  statute,  Mr.  Justice  Field  said  that  the 
terms  are  used  simply  to  designate  the  day  selected  by  the  legislature.  • 
The  same  construction  would  obtain  and  the  same  result  follow  if  any 
other  terms  were  employed,  as  'the  Lord's  day,  commonly  called  Sun- 
day,' contained  in  the  statute  of  Pennsylvania,  or  simply  the  'Sabbath 
day,'  or  'the  first  day  of  the  week,'  as  in  several  States."  (9  Cal.  502, 
1858.) 

The  law  was  reenacted  in  substantially  the  same  form  in 
i86i,  under  the  title  "For  the  observance  of  the  Sabbath."  In 
July  of  that  year,  in  the  case  of  Ex  Parte  Andrews  (i8  Cal.  679) 
the  Supreme  Court  held  the  law  to  be  constitutional.  Judge 
Baldwin  in  delivering  the  opinion  of  the  court  said : 

"Unquestionably,  under  our  system,  the  legislature  has  power  to 
repress  whatever  is  hurtful  to  the  general  good.  This  is  a  great  pur- 
pose and  end  of  all  government.  It  is  just  as  true  that  under  our  the- 
ory the  legislature  must  generally  be  the  exclusive  judge  of  what  is 
or  is  not  hurtful  ...  If  from  physical  causes  the  carrying  on  of  particu- 
lar pursuits — as  in  certain  mines  or  some  mechanical  branches  which 


CALIFORNIA.  I7i 

generate  disease— is  hurtful  to  health,  it  is  within  the  power  of  gov- 
ernment to  regulate  the  business  so  as  to  obviate  or  mitigate  such  re- 
sults. And  of  both  the  evil  and  the  remedy  the  legislature  is  the  judge, 
and  why  should  the  power  be  less  or  different  when  the  evil  is  moral 
instead  of  physical?  The  legislature  has  not  only  tne  power  to  regu- 
late, but  the  power  to  suppress  particular  branches  of  business  which 
it  considers  immoral  and  prejudicial  to  the  general  good,  as  gambling, 
lotteries,  etc.  The  duty  of  government  comprehends  the  moral  as  well 
as  the  physical  welfare  of  the  State;  and  in  this  instance,  it  is  asserted 
on  behalf  of  this  law,  that  the  passage  of  it  is  to  the  welfare  of  the 
people,  both  moral  and  physical." 

Referring  to  the  fourth  section  of  the  tirst  article  of  the  constitu- 
tion, which  guarantees  the  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  and  upon  which  the  argument  for  the  uncon- 
stitutionality of  the  law  was  chiefly  based,  .Tudge  Baldwin  said:  "We 
understand  this  to  be  an  interdict  against  all  legislation  which  invidi- 
ously discriminates  in  favor  of  or  against  any  religious  system.  It 
does  not  interdict  all  legislation  upon  subjects  connected  with  re- 
ligion; much  less  does  it  make  void  legislation,  the  effect  of  which 
is  to  promote  religion,  or  even  advance  the  interests  of  a  sect  or  class 
of  religionists.  On  the  contrary,  the  interests  and  even  the  rites  of 
sects  have  been  oftentimes  protected  by  law,  as  by  acts  of  incorpora- 
tion of  churches,  exemption  from  taxation  in  some  States,  protection 
of  meetings  from  interruption,  and  the  like  acts.  While  the  primary  ob- 
ject of  legislation,  which  respects  secular  affairs,  is  not  the  promotion 
of  religion,  yet  it  can  be  no  objection  to  laws,  that  while  they  are  im- 
mediately aimed  at  secular  interests,  they  also  promote  piety."  He 
declared  that  the  fact  that  the  day  protected  was  the  day  observed  by 
Christians  for  worship,  was  no  reason  for  holding  the  law  to  be  un- 
constitutional, that  the  act  requires  no  one  either  to  support  any  re- 
ligious sect  or  to  have  a  religion,  that  it  enjoins  nothing  that  is  not 
secular,  and  commonds  nothing  that  is  religious,  that  it  is  purely  a 
•civil  regulation,  and  spends  its  whole  force  upon  matters  of  civil  econ- 
omy. In  replying  to  the  argument  based  upon  the  use  of  the  terms, 
"Sabbath"  and  Christian  Sabbath,  it  was  declared  that  even  if  one  of 
the  motives  of  the  framers  of  the  act  was.  to  enforce  a  religious  re- 
spect for  the  Sabbath,  it  would  be  difficult  to  maintain  that  this  invali- 
dates it  on  the  ground  of  its  unconstitutionality. 

Without  entering  into  a  full  discussion  of  the  matters  involved  the 
court  adopted  as  its  own  the  opinion  of  Mr.  Justice  Field  in  Ex  parte 
Newman,  9  Cal.  518. 

In  Ex  Parte  Bird  the  law  was  again  declared  constitutional. 
(19  Cal.  130.  1861.) 

In  1872  a  new  law  was  enacted  and  all  former  laws  repealed. 
It  is  contained  in  Chapter  \'II.  of  the  Penal  Code,  and  is  en- 


172  CALIFORNIA. 

titled,  "Of  Crimes  against  religion  and  Conscience,  and  other 
offenses  against  good  moral-s."     It  is  as  follows : 

"299.  Every  person  who,  on  the  Christian  Sabbath,  gets  up,  ex- 
hibits, opens,  or  maintains,  or  aids  in  getting  up,  exhibiting,  opening, 
or  maintaining,  any  bull,  bear,  cock,  or  prize  fight,  horse-race,  circus, 
gambling-house,  or  saloon,  or  any  barbarous  and  noisy  amusement,  or 
who  keeps,  conducts,  or  exhibits  any  theater,  melodeon,  dance-  cellar, 
or  other  place  of  musical,  theatrical,  or  operatic  performance,  spec- 
tacle, or  representation  where  any  wines,  liquors,  or  intoxicating, 
drinks  are  bought,  sold,  used,  drank,  or  given  away,  or  who  purchases 
any  ticket  of  admission,  or  directly  or  indirectly  pays  any  admission 
fee  to  or  for  the  purpose  of  witnessing  or  attending  any  such  place,. 
amusement,  spectacle,  performance  or  representation,  is  guilty  of  a 
misdemeanor." 

"300.  Every  person  who  keeps  open  on  Sunday  any  store,  work- 
shop, bar,  saloon,  banking-house,  or  other  place  of  business,  for  the 
purpose  of  transacting  business  therein,  is  punishable  by  fine  not  less 
than  four  nor  more  than  fifty  dollars." 

This  was  amended  in  1880  to  read  as  follows:  "The  provisions- 
of  the  preceding  section  do  not  apply  to  persons  who,  on  Sunday,, 
keep  open  hotels,  boarding-houses,  barber-shops,  baths,  markets,  res- 
taurants, taverns,  livery-stables,  or  retail  drug  stores,  for  the  legiti- 
mate business  of  each,  or  such  manufacturing  establishments  as  are 
usually  kept  in  continued  operation;  provided,  that  the  provisions  of 
the  preceding  section  shall  not  apply  to  persons  keeping  open  barber- 
shops, bath-houses,  and  hair-dressing  saloons  after  12  o'clock  M.  ou 
Sunday." 

In  1880  an  act  to  provide  for  a  bakers'  day  of  rest  was  passed.  It 
is  as  follows:  "1.  It  shall  be  unlawful  for  any  person  engaged  in 
the  business  of  baking  to  engage  or  permit  others  in  his  employ  to  en- 
gage in  the  labor  of  baking,  for  the  purpose  of  sale,  between  the  hours- 
of  six  o'clock  P.  M.  on  Saturday,  and  six  o'clock  on  Sunday,  except  in 
the  setting  of  sponge  preparatory  to  the  night's  work;  provided,  how- 
ever, that  restaurants,  hotels,  and  boarding-houses  may  do  such  baking 
as  is  necessary  for  their  own  consumption." 

"2.  Any  person  violating  the  provisions  of  this  act  shall  be  guilty 
of  a  misdemeanor,  and  shall  be  punishable  by  imprisonment  in  the 
county  jail  not  less  than  one  month  nor  more  than  six  months,  or  by 
a  fine  of  not  less  than  twenty-five  dollars  nor  more  than  two  hundred 
dollars,  or  by  both  fine  and  imprisonment."       (pp.  128,  129.) 

In  July,  1880,  the  act  providing  for  a  bakers'  day  of  rest  was  de- 
clared unconstitutional,  because  it  was  special  legislation  and  in  con- 
flict with  section  25,  Article  IV.,  of  the  Constitution.  (55  Cal.  550), 
Ex  parte  Westfield.) 

In  July,  1881  the  constitutionality  of  the  Sabbath  law  was  agaio 
passed  upon  by  the  Supreme  Court.     Chief  Justice  Morrison    in    ren- 


CALIFORNIA.  173 

•deriug  the  decision  of  the  court  considered  at  some  length  the  consti-' 
tutional  grounds  of  such  legislation.  It  had  been  argued  that  Article 
1,  Section  4  of  the  Constitution,  which  declares  that  "the  free  exercise 
and  enjoyment  of  religious  profession  and  worship,  without  discrimin- 
ation or  preference,  shall  forever  be  guaranteed  in  this  State,"  forbids 
the  enactment  of  a  Sabbath  law.  Judge  Morrison  shows  conclusively 
that  this  is  not  correct.  But  he  denies  that  it  is  "a  religious  regula- 
tion." He  declares  that  "it  is  purely  a  secular,  sanitary,  or  police  reg- 
ulation." He  states  that  such  legislation  is  uniformly  upheld  as  con- 
stitutional by  the  courts  of  the  different  States,  but  he  adds,  "It  is 
true,  that  they  are  not  uniform  in  the  view  that  the  acts  can  be  sus- 
tained from  a  religious  standpoint  and  upon  religious  grounds,  but  they 
are  uniform  in  holding  that  such  a  law  does  not  violate  any  consti- 
tutional provision.  By  some  of  the  authorities  it  is  held  that  Christi- 
anity is  a  part  of  the  common  law  of  this  country,  and  by  others  that 
it  is  not;  while  another  view  is,  that  Christianity  is  a  part  of  our  com- 
mon law  in  only  a  qualified  sense.. 

He  quotes  from  Sedgwick's  Constitutional  and  Statute  Law  as  fol- 
lows: 

"Still,  though  Christianity  is  not  the  religion  of  the  State,  consid- 
ered as  a  political  corporation,  it  Is  nevertheless  interwoven  into  the 
texture  of  our  society,  and  is  intimately  connected  with  all  our  social 
habits,  and  customs  and  modes  of  life."  After  reciting  the  history  of 
the  law  and  the  decisions  of  Courts  pro  and  con,  he  declares  "It  will 
thus  be  seen  that  the  departure  from  the  line  of  authority  was  of  short 
duration,  and  that  the  highest  court  of  this  State,  at  an  early  day  in 
our  history,  returned  to  the  well-beaten  track  of  judicial  authority  on 
this  interesting  and  frequently  discussed  question.  It  is  too  late  now 
to  indulge  in  another  departure,  even  if  I  were  inclined  to  set  aside 
the  great  weight  of  judicial  opinions  by  which  Sunday  laws  have  been 

sustained  and  enforced Regarding  the  law  from  a  purely  secular 

standpoint,  the  law  is  a  proper  and  salutary  one.  It  imposes  no  re- 
straint upon  the  conscience  of  any  member  of  the  community;  it  ex- 
acts from  no  person  the  performance  of  any  religious  rites  or  cere- 
monies; it  prescribes  no  religious  faith  or  belief;  a  man  may  be  an 
Episcopalian,  a  Methodist,  a  Catholic,  a  Hebrew,  or,  if  he  sees  fit,  even 
.an  Infidel.  He  may  worship  one  God  or  a  plurality  of  gods.  He  may 
be  a  Trinitarian  or  a  Unitarian,  or  he  may  reject  all  belief  in  the 
superintending  care  of  a  Divine  Providence.  Sunday  laws  leave  his 
religious  belief  and  practices  as  free  as  the  air  he  breathes."  (Ex 
Parte  Burke,  59  Cal.  6.) 

In  March,  1882,  the  law  was  declared  constitutional,  Justices  Mc- 
Kinstry,  Ross  and  Sharpstein  dissenting.  (GO  Cal.  177.)  Judge  Thorn- 
ton said:  "Declaring  the  provisions  of  the  sections  referred  to  invalid 
as  violative  of  the  constitution,  would  be  to  strike  at  the  foundation 


174 


IDAHO. 


of  the  legislative  power  to  determine  what  acts  of  those  uot  mala  in 
se   shall  be  punished  criminally,  and  what  shall  not  be  punished." 

In  concurring  in  this  opinion  Judge  McKee  took  occasion  to  say 
that  "the  State  has  not  set  apart  Sunday  for  a  day  of  rest  as  a  religious 
institution;  nor  does  she  impose  observance  of  the  day  upon  churches 
or  on  church  members,  nor  are  religious  commemorations  or  cere- 
monies prescribed  or  enforced As  a  day  of  rest,  Sunday  is  not  set 

apart  as  a  holy  day,  but  it  is  set  apart  as  a  legal  holiday." 

In  this  decision  four  judges  favored  the  upholding  of  the  law  as 
constitutional  while  three  dissented. 

In  1883,  the  legislature  repealed  the  law,  leaving  the  State  with- 
out a  rest  day  law  for  ten  years. 

In  1893  a  new  law  was  enacted  "to  provide  for  a  day  of  rest  from 
labor."     It  is  as  follows: 

"1.  Every  person  employed  in  any  occupation  of  labor  shall  be 
entitled  to  one  day's  rest  therefrom  in  seven;  and  it  shall  be  unlawful 
for  any  employer  of  labor  to  cause  his  employees,  or  any  of  them  to 
work  more  than  six  days  in  seven;  provided,  however,  that  the  provis- 
ions of  this  section  shall  not  apply  to  case  of  emergency. 

"2.  For  the  purposes  of  this  act,  the  term  day's  rest  shall  mean 
and  apply  to  all  cases,  whether  the  employee  is  engaged  by  the  day, 
week,  month,  or  year,  and  whether  the  work  performed  is  done  in  the 
day  or  night  time. 

"3.  Any  person  violating  the  provisions  of  this  act  shall  be 
deemed  guilty  of  a  misdemeanor.    (Penal  Cole,  722.) 

IDAHO.       (IQOI.) 

"Stuidays  and  holidays"  is  the  title  of  that  division  of  the 
Statutes  of  Idaho  which  contains  the  only  provisions  relating  to 
the  first  day  of  the  week.  They  are  found  in  Chapter  CXXI., 
and  are  as  follows  : 

"3017.  No  court  can  be  opened  nor  can  any  judicial  business 
be  transacted  on  Sunday,  on  the  first  day  of  January,  on  the  fourth 
day  of  July,  on  Christmas,  or  Thanksgiving  day,  or  on  any  day  on 
which  the  general  election  is  held,  except  for  the  following  purposes. 

1.  To  give  upon  their  request,  instructions  to  a  jury  when  de- 
liberating on  their  verdict; 

2.  To  receive  a  verdict  or  discharge  a  jury; 

3.  For  the  exercise  of  the  powers  of  a  magistrate  in  a  criminal 
action  or  in  a  proceeding  of  a  criminal  nature." 

In  civil  causes  orders  of  arrest  may  be  made  and  executed,  writs 
of  attachment  and  executions  served,  and  procedings  to  recover  per- 
sonal property  may  be  had.     (p.  13.) 


CHAPTER  VII. 
THE  GENERAL  GOVERNMENT  AND  THE  SABBATH. 

The  authority  to  enact  a  general  Sabbath  law  for  the  entire 
country  does  not  belong  to  the  government  of  the  United  States. 
If  such  were  the  case  the  laws  in  the  diiiferent  States  already  con- 
sidered would  not  exist.  This  is  one  of  the  powers  not  delegated 
to  the  United  States  by  the  Constitution,  but  reserved  to  the 
States  respectively.  But  there  is  a  sphere  in  which  the  National 
Government  has  the  exclusive  right  to  enact  such  laws.  The 
District  of  Columbia,  all  possessions  in  which  territorial  gov- 
ernment has  not  been  established,  the  Panama  Canal  zone,  all 
government  buildings,  all  departments  of  the  government  wher- 
ever operated,  are  subject  exclusively  to  such  regulations  as  may 
be  made  by  the  general  government. 

As  to  the  District  of  Columbia.  Congress  has  hitherto  neg- 
lected to  perform  its  duty  to  enact  a  law  pertaining  to  Sabbath 
oliservance  except  to  close  saloons  on  that  day. 

ALASKA.        (1900.) 

The  act  of  Congress  with  reference  to  the  Sabbath  in  Alaska 
is  entitled  "Profanation  of  Sunday."  It  is  found  in  Chapter  8 
and  is  as  follows : 

•'141.  If  any  person  shall  keep  open  any  store,  shop,  grocery,  ball 
alley,  billiard  room,  or  tippling  house,  for  purposes  of  labor  or  traffic, 

175 


376  INDIAN  TERRITORY. 

or  any  place  of  amusement,  on  the  first  day  of  the  week,  commonly 
called  Sunday  or  the  Lord's  day,  such  person,  upon  conviction  thereof, 
shall  be  punished  by  a  fine  not  less  than  five  nor  more  than  fifty  dol- 
lars: provided,  that  the  above  provision  shall  not  apply  to  the  keepers 
of  drug  stores,  doctor  shops,  undertakers,  livery-stables  keepers,  bar- 
bers, butchers  and  bakers,  and  all  circumstances  of  necessity  and 
mercy  may  be  pleaded  in  defense,  which  shall  be  treated  as  questions 
of  fact  for  the  jury  to  determine,  when  the  offense  is  tried  by  jury." 
.(p.  30.) 

INDIAN  TERRITORY. 

"Sabbath  Breaking"'  is  the  title  of  the  law  of  the  Indian  Ter- 
ritory relating  to  the  first  day  of  the  week,  found  in  Chapter  19. 
It  is  the  same  as  the  law  of  Arkansas. 

A  GENERAL  LAW  FOR  ALL  DEPARTMENTS  OF  THE  GOVERNMENT. 

From  time  to  time  Congress  has  adopted  acts  for  the  regulat- 
ing of  all  departments  of  the  government,  in  which  there  is  a 
clause  with  reference  to  the  first  day  of  the  week.  This  clause  is 
as  old  at  least  as  an  act  of  1836,  and  was  embodied  in  an  act  of 
1898  and  is  as  follows : 

"It  shall  be  the  duty  of  the  heads  of  the  several  Executive  De- 
partments, in  the  interest  of  the  public  service,  to  require  of  all  clerks 
and  other  employees  of  whatever  grade  or  class,  in  their  respective 
departments,  not  less  than  seven  hours  of  labor  each  day,  except  Sun- 
days and  days  declared  public  holidays  by  law  or  executive  order." 

The  exclusion  of  the  Lord's  day  from  the  days  of  required 
official  duty  has  been  the  custom  of  the  Government  Depart- 
ments always. 

THE   DEPARTMENT    OF    STATE. 

This  Department  has  no  special  regulations  relating  to  this 
matter,  the  Act  of  Congress  quoted  above  being  sufficient  for  all 
purposes. 

TREASURY  DEPARTMENT. 

In  addition  to  the  general  law  regulating  all  Executive  De- 
partments there  are  other  acts  applying  to  the  Treasury  Depart- 
ment, providing  for  leave  of  absence  for  thirty  days  and  declaring 


WAR  DEPARTMENT.  177 

that  these  thirty  days  shall  be  exclusive  of  "Sundays"  and  holi- 
days. There  are  also  a  number  of  regulations  covering  the  same 
ground  and  providing  for  leave  of  absence  in  case  of  sickness, 
and  declaring  that  "Sundays"  occurring  within  such  a  period  will 
be  charged.  The  acting  secretary  writes  that  "from  the  organi- 
zation of  the  Government  the  practice  of  the  Treasury  Depart- 
ment has  been  to  recognize  the  first  day  of  the  week,  the  Chris- 
tian Sabbath,  as  a  day  of  rest  and  cessation  from  labor,  and  all 
public  buildings  occupied  by  that  department  and  its  dependen- 
cies have  been  closed  on  that  day." 

WAR  DEPARTMENT. 

Title  XIV.  of  the  Revised  Statutes  of  the  United  States  re- 
lates to  the  Army.  Chapter  4  under  this  title  relates  to  the  Mili- 
tary Academy.     Section  1324  is  as  follows: 

"The  Secretary  of  War  shall  so  arrange  the  course  of  studies  at 
the  academy  that  the  cadets  shall  not  be-  required  to  pursue  their 
studies  on  Sunday."     (Vol.  1,  page  933.) 

General  Order  No.  50,  dated  June  12,  1899,  is  as  follows:  "In  No- 
vember, 1862,  President  Lincoln  quoted  the  words  of  Washington  to 
sustain  his  own  views,  and  announced  in  a  general  order  that — 'The 
President,  Commander-in-Chief  of  the  Army  and  Navy,  desires  and  en- 
joins the  orderly  observance  of  the  Sabbath  by  the  officers  and  men 
in  the  military  and  naval  service.  The  importance  for  man  and  beast 
of  the  prescribed  weekly  rest,  the  sacred  rights  of  Christian  soldiers 
and  sailors,  a  becoming  deference  to  the  best  sentiment  of  a  Christian 
people,  and  a  due  regard  for  the  Divine  will  demand  that  Sunday  labor 
in  the  Army  and  Navy  be  reduced  to  the  measure  of  strict  necessity.' 

"The  truth  so  concisely  stated  cannot  be  too  faithfully  regarded, 
and  the  pressure  to  ignore  it  is  far  less  now  than  in  the  midst  of  war. 
To  recall  the  kindly  and  considerate  spirit  of  the  orders  issued  by 
these  great  men  in  the  most  trying  times  of  our  history,  and  to  pro- 
mote contentment  and  efficiency,  the  President  directs  that  Sunday 
morning  inspection  will  be  merely  of  the  dress  and  general  appear- 
ance, without  arms;  and  the  more  complete  inspection  under  arms, 
with  all  men  present,  as  required  in  par.  9.50,  A.  R.,  1889,  will  take 
place  on  Saturday." 

This  order  issued  by  President  McKinley,  is  regarded  as  still  In 
force. 

Paragraph  202,  Army  Regulations,  1904,  is  as  follows:  "An  orderly 
observance  of  the  Sabbath  by  the  officers  and  men  in  the  military  ser- 
vice is  enjoined.  Military  duty  and  labor  on  Sunday  will  be  re- 
.duced  to  the  measure  of  strict  necessity." 


178  DEPARTMENT  OF  JUSTICE. 

The  Chief  of  Engineers  says  that  in  accordance  with  the  spirit  of 
the  foregoing  regulations  enjoining  the  proper  observance  of  the  Sab- 
bath, "It  has  been  and  still  is  the  policy  of  the  Engineer  Department 
to  prohibit,  wherever  possible,  Sunday  labor  on  works  under  its  charge. 
Such  labor  is  permitted  only  in  cases  of  exigency  or  extraordinary 
emergency,  where  it  is  actually  necessary  for  the  public  interests. 
The  procedure  usually  followed  in  enforcing  Sabbath  observance  on 
Government  work  in  the  Engineer  Department  is  to  require,  where  ap- 
plicable, the  insertion  in  the  specifications  for  each  work  a  provision 
forbidding  work  to  be  done  by  the  contractor  on  Sunday,  except  upon 
the  written  consent  of  the  engineer  officer  in  charge,  and  then  only  in 
cases  of  extraordinary  emergency." 

DEPARTMENT  OE  JUSTICE. 

This  Department  has  no  regulations  concerning-  the  first 
day  of  the  week  as  a  day  of  rest. 

POST    OFEICE   DEPARTMENT. 

Chapter  3  of  Postal  Laws  and  Regulations,  (1903),  is  entitled 
"General  Provisions  relating  to  Postoffices."     Section  264  is  as. 

follows : 

"Where  mail  arrives  on  Sundays,  postoffices  must  be  kept  open  for 
an  hour  or  more  for  the  delivery  thereof,  if  the  public  convenience  re- 
quires it.  If  the  mail  is  received  during  the  time  of  public  worship  the 
office  need  not  be  opened  till  after  the  close  of  services.  Offices  need 
not  be  opened  on  Sundays  if  no  mails  are  received  between  the  hour  of 
closing  on  Saturday  and  6  p.  m.  Sunday. 

"2.  While  post-offices  are  open  on  Sundays  delivery  of  mail  must 
be  made  to  all  who  apply,  as  well  as  to  box  holders.  Postage  stamps 
may  be  sold;  but  money  orders  need  not  be  issued  or  paid.  The  regis- 
tration of  mail  matter  and  the  delivery  of  registered  matter  on  Sun- 
days is  left  to  the  option  of  each  postmaster.  Special  delivery  mail 
must  be  delivered  on  Sundays  as  well  as  on  other  days,  if  post-office 
is  open  on  Sundays. 

"3.  The  carriers'  windows  at  free  delivery  offices  must  be  opened 
on  Sundays  and  holidays  during  the  regular  office  hours  for  the  de- 
livery of  naail  matter."     (page  117.) 

Provisions  for  carrying  the  mail  declare  that  'The  Postmaster- 
General  shall  provide  for  carrying  the  mail  on  all  post  roads  estab- 
lished by  law,  as  often  as  he,  having  due  regard  to  productiveness  and 
other  circumstances,  may  think  proper."  (U.  S.  Compiled  Statutes, 
Vol.  2,  p.  2708,  1901.) 


CONGRESS  AND  THE  MAILS.  179 

It  is  held  by  the  Supreme  Court  of  the  United  States  that  "In  the 
case  of  mail  transportation  contracts,  congress  must  be  deemed  the 
principal,  the  Postmaster-General  its  agent.  (American  Digest,  Vol.  40, 
p.  283.) 

CONGRKSS   AND  THE    MAILS. 

The  Postmaster-General  in  181 5  declared  that  the  transpor- 
tation of  the  United  States  mails  on  the  first  day  of  the  week 
was  coeval  with  the  Constittition,  and  it  is  probable  that  this  was 
true  with  respect  to  some  of  the  most  important  routes.  The 
first  authorization  by  Congress  of  the  delivery  of  mails  on  the 
Lord's  day  was  on  April  30,  1810.  General  opposition  to  this 
action  was  manifested  in  all  parts  of  the  country,  and  it  is 
thought  that  it  might  have  been  rescinded  but  for  the  breaking 
out  of  the  war  of  1812.  "which  made  an  excuse  for  its  continu- 
ance as  a  war  measure." 

Numerous  petitions  were  sent  to  Congress  in  1828-9,-  urg- 
ing that  Sunday  mails  be  discontinued.  The  tone  of  the  peti- 
tions can  be  discerned  from  the  following  extracts:  "Your 
Memoralists  protest  against  the  States  supporting,  aiding  or  be- 
ing united  to  the  Church ;  and  they  also  protest  against  the  civil 
power  being  used  to  trample  down  or  persecute  the  Church,  or 
to  weaken  and  destroy  one  Church  duty."  "When  the  Consti- 
tution provided  that  Congress  should  pass  no  law  establishing  re- 
ligion, it  surely  was  not  intended  to  vest  that  body  with  the  right 
to  pass  a  canon  desecrating  one  of  the  most  sacred  institutions 
of  the  religion  of  the  nation.  This  law  is  against  religion."  It 
was  urged  that  Congress  received  from  the  States  no  power  to 
authorize  such  work  on  the  Sabbath  as  had  always  been  illegal 
in  all  of  them,  and  that  the  law  was  therefore  unconstitutional. 
It  was  urged  still  further  that  to  require  any  class  of  govern- 
ment officers  to  work  on  the  Sabbath  was  an  infringement  on 
their  rights  of  conscience.  The  Memoralists  declared  that  the 
measure  was  not  only  needless  but  also  harmful,  both  physically^ 
mentally  and  morally,  both  to  the  postmasters  and  to  the  people. 


i8o  -  CONGRESS  AND  THE  MAILS. 

and  that  while  discarding  the  union  of  Church  and  State,  the  na- 
tion cannot  ignore  the  connection  of  morahty  and  the  State.* 

These  petitions  were  referred  to  a  committee  of  the  Senate 
of  which  Richard  M.  Johnson  was  the  Chairman.t  The  report  of 
this  committee  is  found  in  Senate  Documents,  2d  Session, 
Twentieth  Congress,  Jan.  19,  1829,  and  is  as  follows : 

"The  Committee  to  whom  was  referred  the  several  petitions  on  the 
subject  of  mails  on  the  Sabbath  or  first  day  of  the  week,  report: 

"That  some  respite  is  required  from  the  ordinary  vocations  of  life 
is  an  established  principle  sanctioned  by  the  usages  of  all  nations 
whether  Christian  or  pagan.  One  day  in  seven  has  also  been  determined 
upon  as  the  proportion;  and,  in  conformity  with  the  wishes  of  the  great 
majority  of  citizens  of  this  country,  the  first  day  of  the  week,  commonly 
called  Sunday,  has  been  set  apart  to  that  object.  The  principle  has 
received  the  sanction  of  the  National  Legislature  so  far  as  to  admit  of 
a  suspension  of  all  public  business  on  that  day,  except  in  cases  of  abso- 
lute necessity  or  great  public  utility.  This  principle  the  Committee 
would  not  wish  to  disturb.  If  kept  within  its  legitimate  sphere  of 
action  no  injury  can  result  from  its  observance.  It  should,  however,  be 
kept  in  mind  that  the  proper  object  of  government  is  to  protect  all 
persons  in  the  enjoyment  of  their  religious  as  well  as  civil  rights;  and 
not  to  determine  for  any  whether  they  shall  esteem  one  day  above 
another  or  esteem  all  days  alike  holy.  We  are  aware  that  a  variety  of 
sentiments  exist  among  good  citizens  of  this  nation  on  the  subject  of 
the  Sabbath  day;  and  our  government  is  designed  for  the  protection  of 
one  as  much  as  for  another.  The  Jews,  who  in  this  country  are  as  free 
as  Christians  and  entitled  to  the  same  protection  from  the  laws,  derive 
their  obligation  to  keep  the  Sabbath  day  from  the  fourth  commandment 
of  the  Decalogue,  and  in  conformity  with  that  injunction  pay  religious 
homage  to  the  seventh  day  of  the  week,  which  we  call  Saturday.  One 
denomination  of  Christians  among  us,  justly  celebrated  for  their  piety 
and  certainly  as  good  citizens  as  any  other  class,  agree  with  the  Jews 
in  the  moral  obligation  of  the  Sabbath  and  observe  the  same  day. 
There  are  also  many  Christians  among  us  who  derive  not  their  obliga- 
tion to  observe  the  Sabbath  from  the  Decalogue,  but  regard  the  Jewish 
Sabbath  as  abrogated.  Frorh  the  example  of  Christ  they  have  chosen 
the  first  day  of  the  week,  instead  of  that  day  set  apart  in  the  Decalogue 


*See,   "The  Sabbath  for  Man"  by  Dr.  W.  F.   Crafts;  pp  .271,  274. 

fAlexander  Campbell,  it  is  claimed  by  his  biographer,  was  the  real  author  of 
this  report.  He  declares  that  Mr.  Johnson  had  neither  the  education  nor  ability  to 
write  such  a  report,  that  Mr.  Campbell  and  Mr.  Johnson  were  warm  friends,  that 
Mr.  Campbell  had  taken  a  leading  part  in  opposition  to  the  enforcement  of  laws 
against  blasphemy  and  Sabbath  breaking  in  Washington  county,  Pa.,  and  that 
when  charged  with  being  the  author  of  the  report  he  gave  an  evasive  answer. 
Memoirs  of  Ale.xander  Campbell  by  Robert  Richardson;  two  volumes,  vol.  1,  pp. 
£36,  537. 


CONORE.^S  AM)  TUK  MA  U.S.  i8r 

for  their  religious  devotions.  These  have  generally  regarded  the 
observance  of  the  day  as  a  devotional  exercise,  and  would  not  more 
readily  enforce  it  upon  others  than  they  would  secret  piayer  or  devout 
meditations.  Urging  the  fact  that  neither  their  Lord  nor  His  disciples, 
though  often  censured  by  their  accusers  for  a  violation  of  the  Sabbath, 
ever  enjoined  its  observance,  they  regard  it  as  a  subject  on  which  every 
person  should  be  fully  persuaded  in  his  own  mind  and  not  coerce  others 
to  act  upon  his  persuasion.  Many  Christians  again  differ  trom  these, 
professing  to  derive  their  obligation  to  observe  the  Sabbath  from  the 
fourth  commandment  of  the  Jewish  Decalogue,  and  bring  the  example 
of  the  Apostles,  who  appear  to  have  held  their  public  meetings  for 
worship  on  the  first  day  of  the  week,  as  authority  for  so  far  changing 
the  Decalogue  as  to  substitute  that  day  for  the  seventh.*  The  Jewish 
Government  was  a  Theocracy  with  enforced  religious  observances;  and 
though  the  Committee  would  hope  that  no  portion  of  the  citizens  of 
our  country  would  willingly  introduce  a  system  of  coercion  in  our  civil 
institutions,  the  example  of  other  nations  should  admonish  us  to  watch 
carefully  against  its  earliest  indications.  With  these  different  religious 
views  the  Committee  is  of  the  opinion  that  Congress  cannot  interfere. 
It  is  not  the  legitimate  province  of  the  Legislature  to  determine  what 
religion  is  true  or  what  false.  Our  Government  is  a  civil  not  a  religious 
institution.  Our  Constitution  recognizes  in  every  person  the  right  to 
choose  his  own  religion  and  to  enjoy  it  freely  without  molestation. 
Whatever  may  be  the  religious  sentiments  of  citizens,  and  however 
variant,  they  are  alike  entitled  to  protection  from  Government  so  long 
as  they  do  not  invade  the  rights  of  others. t 

The  transportation  of  the  mails  on  the  first  day  of  the  week,  it  is 
believed,  does  not  interfere  with  rights  of  conscience.  The  petitioners 
for  its  discontinuance  appear  to  be  actuated  from  a  religious  zeal  which 
may  be  commendable  if  confined  to  its  proper  sphere;  but  they  assume 
a  position  better  suited  to  an  ecclesiastical  than  a  civil  institution. 
They  appear  in  many  instances  to  lay  it  down  as  an  axiom  that  the 


*  This  may  be  the  view  of  some,  but  the  true  view  is  that  the  Fourth  Com- 
mandment does  not  specify  the  day  cf  the  week  to  be  observed,  but  only  the  propor- 
tion  of   time,    the   seventh   after   six   of    labor. 

fEven  trom  this  inadequate  statement  it  is  clear  that  the  Sabbath  laws  of  our  country 
should  be  enforced  because  individual  rigi  ts  are  invaded  by  Sunday  mails  and  similar 
infractions  of  the  law.  The  Supreme  Court  of  the  I'nited  States  has  declared  that 
"With  man's  relation  to  his  Maker  and  the  obligations  he  may  think  they  impose, 
and  the  manner  in  which  an  expression  shall  be  made  by  him  of  his  belief  on 
those  subjcts,  no  interference  can  be  permitted,  provided  always  that  the  laws 
of  society  designed  to  secure  its  peace  and  prosperity,  and  the  morals  of  its  people 
are  not  intefered  with.  However  free  the  exercise  of  religion  may  be,  it  must  be 
subordinate  to  the  criminal  laws  of  the  country,  passed  with  reference  to  actions 
regarded  by  general  consent  as  properly  the  subjects  of  punitive  legislation." 
(David  v.  Beason,  13X  I".  S.,  p.  H3a.  1890.  >  Sabbath  Laws  are  usually  found  in  the  Penal 
Code  and  by  gomrul  cmscnt  S.ibbath  desecration  is  regarded  as  properly  the  subject 
of  puDitive  legislation. 


i82  CONGRESS  AND  THE  MAILS. 

practice  is  a  violation  of  the  law  of  God.  Should  Congress  in  their 
legislative  capacity  adopt  the  sentiment,  it  would  establish  the  principle 
that  the  Legislature  is  a  proper  tribunal  to  determine  what  are  the 
laws  of  God.  It  would  involve  a  legislative  decision  in  a  religious  con- 
troversy; and  on  a  point  on  which  good  citizens  may  honestly  differ 
without  disturbing  the  peace  of  society  or  endangering  its  liberties.  If 
this  principle  is  once  introduced  it  will  be  impossible  to  define  its 
bounds.  Among  all  the  religious  persecutions  with  which  almost  every 
page  of  modern  history  is  stained,  no  victim  suffered  but  for  what 
government  denominated  :he  law  of  God.  To  prevent  a  similar  train 
of  evils  in  this  country,  the  Constitution  has  wisely  withheld  from  our 
government  the  power  of  defining  the  Divine  law.  It  is  a  right  reserved 
to  each  citizen;  and,  while  he  respects,  the  equal  rights  of  others,  he 
cannot  be  held  amenable  to  any  human  tribunal  for  his  conclusions. 

Extensive  religious  combinations  for  a  political  object  are,  in  the 
opinion  of  the  committee,  always  dangerous.  This  first  effort  of  the 
kind  calls  for  the  establishment  of  a  principle  which,  in  the  opinion  of 
the  committee,  would  lay  the  foundation  of  dangerous  innovations  upon 
the  spirit  of  the  Constitution,  and  upon  the  religious  rights  of  the 
citizens.  If  admitted,  it  may  be  justly  apprehended  that  the  future 
measures  of  the  government  will  be  strongly  marked,  if  not  eventually 
controlled  by  the  same  influence.  All  religious  depotism  commences  by 
combination  and  influence;  and  when  that  influence  begins  to  operate 
upon  the  political  institutions  of  a  country,  the  civil  power  soon  bends 
tinder  it;  and  the  catastrophes  of  other  nations  furnish  an  awful  warn- 
ing of  the  consequence.  Under  the  present  regulations  of  the  Post 
Office  Department  the  rights  of  conscience  are  not  invaded.  Every 
agent  enters  voluntarily,  and  it  is  presumed  conscientiously,  into  the 
■discharge  of  his  duties,  without  intermeddling  with  the  conscience  of 
another.  Post  Offices  are  so  regulated  as  that  but  a  small  proportion 
of  the  F'irst  Day  of  the  week  is  required  to  be  occupied  in  official  busi- 
ness. In  the  transportation  of  the  mails  on  that  day  no  one  agent  is 
employed  many  hours.  Religious  persons  enter  into  the  business  with- 
out violating  their  consciences,  or  imposing  any  restraints  on  others. 
Passengers  in  mail  stages  are  free  to  rest  during  the  first  day  of  the 
■week,  or  to  pursue  their  journeys  at  pleasure.  While  the  mail  is  trans- 
ported on  Saturday,  the  Jew  and  Sabbatarian  may  abstain  from  any 
agency  in  carrying  it,  from  conscientious  scruples.  While  it  is  trans- 
ported on  the  first  day  of  the  week,  another  class  may  abstain  from  the 
same  religious  scruples.  The  obligation  of  Government  is  the  same  to 
,  both  these  classes;  and  the  committee  can  discover  no  principle  on 
which  the  claims  of  the  one  should  be  more  respected  than  those  of  the 
other,  unless  it  s.hould  be  admitted  that  the  consciences  of  the  minority 
are  less  sacred  than  those  of  the  majority.  It  is  the  opinion  of  the 
committee  that  the  subject  should  be  regarded  simply  as  a  question  of 
expediency,  irrespective  of  its  religious  bearings.  In  this  light  it  has 
hitherto  been  considered;  Congress  has  never  legislated  on  the  subject. 


CONGRESS  ANT)  THE  MAILS.  183 

It  rests  as  it  ever  has  done,  in  the  legal  discretion  of  the  Postmaster 
General,  under  the  repeated  refusals  of  congress  to  discontinue  the 
Sabbath  mails.  His  knowledge  and  judgment  in  all  concerns  of  that 
department  will  not  be  questioned.  His  intense  labors  and  assiduity- 
have  resulted  in  the  highest  improvement  of  every  branch  of  his  depart- 
ment. It  is  practiced  only  on  the  great  leading  routes,  and  such  others 
as  are  necessary  to  maintain  their  connections.  To  prevent  this  would, 
in  the  opinion  of  the  committee,  be  productive  of  immense  injury,  both 
in  its  commercial,  political,  and  in  its  moral  bearings.  The  various 
departments  of  government  require  frequently  in  peace,  and  always  in 
war,  the  speediest  intercourse  with  the  remotest  parts  of  the  country; 
and  one  important  object  of  the  mail  establishment  is  to  furnish  the 
greatest  and  most  economical  facilities  for  that  intercourse.  The  delay 
of  the  mails  one  whole  day  in  seven,  v/ould  require  the  employment  of 
special  expresses  at  great  expense,  and  sometimes  with  great  uncer- 
tainty. The  commercial,  manufacturing  and  agricultural  interests  of 
our  country,  are  so  intimatsly  connected  as  to  require  a  constant  and 
most  expeditious  correspondence  betwixt  all  our  seaports,  and  betwixt 
them  and  the  most  interior  settlements.  The. delay  of  the  mails  during 
the  Sunday  would  give  occasion  to  employment  of  private  expresses,  to 
such  an  amount  that  probably  ten  riders  would  be  employed  where  one 
mail  stage  is  now  running  on  that  day;  thus  diverting  the  means  of 
that  Department  into  another  channel,  and  sinking  that  establishment 
into  a  state  of  pusilanimity  incompatible  with  the  dignity  of  the  Govern- 
ment of  which  it  is  a  department.  Passengers  in  the  mail  stages,  if  the 
mails  are  not  permitted  to  proceed  on  Sunday,  will  be  expected  to  spend 
that  day  at  a  tavern  upon  the  road,  generally  under  circumstances  not 
friendly  to  devotion,  at  an  expense  which  many  are  but  poorly  able  to 
«ncouter.  To  obviate  these  difficulties  many  will  employ  extra  carriages 
for  their  conveyance,  and  become  the  bearers  of  correspondence  as  more 
■expeditious  than  the  mails.  The  stage  proprietors  will  themselves  often 
furnish  the  travelers  with  those  means  of  conveyance;  so  that  the 
effect  will  be  ultimately  only  to  stop  the  mail,  while  the  vehicle  which 
conveys  it  will  continue,  and  its  passengers  become  the  special  mes- 
sengers for  conveying  considerable  proportion  of  what  would  otherwise 
constitute  the  contents  of  the  mail.  Nor  can  the  committee  discover 
where  the  system  could  consistently  end.  If  the  observance  of  a  holy 
day  becomes  incorporated  in  our  institutions,  shall  we  not  forbid  the 
movement  of  an  army;  prohibit  an  assault  in  time  of  war;  and  lay 
our  injunction  upon  our  naval  officers  to  lie  in  the  wind  while  upon 
the  ocean  on  that  day?  Consistency  would  seem  to  require  it.  If  the 
principle  is  once  established  that  religion  or  religious  observances  shall 
be  interwoven  with  our  legislative  acts,  we  must  pursue  it  to  its  ulti- 
mate end.  We  shall,  if  consistent,  provide  for  the  erection  of  edifices  for 
the  worship  of  the  Creator,  and  for  the  support  of  Christian  ministers, 
if  we  believe  such  measures  will  promote  the  interests  of  Christianity. 
It  i3  the  settled  conviction  of  the  committee,  that  the  only  method  of 


i84  NA  VY  DEPARTMENT. 

avoiding  these  consoqnences  with  their  attendant  train  of  evils,  is  to 
adhere  strictly  to  the  spirit 'of  the  Constitution,  which  regards  the 
general  Government  in  no  other  light  than  that  of  a  civil  institution, 
wholly  destitute  of  religious  authority.  What  other  nations  call  re- 
ligious toleration,  we  call  religious  rights.  They  are  not  exercised  in 
virtue  of  governmental  indulgence,  but  as  rights,  of  which  government 
cannot  deprive  any  portion  of  its  citizens  however  small.  Despotic 
power  may  invade  these  rights,  but  justice  still  confirms  them.  Let 
the  national  legislation  once  perform  an  act  which  involves  the  decision 
of  a  religious  controversy,  and  it  will  have  passed  its  legislative  bounds. 
The  precedent  will  be  established,  and  the  foundation  laid  for  that  as- 
sumption of  the  Divine  prerogative  in  this  country,  which  has  been 
the  desolating  scourge,  to  the  fairest  portions  of  the  old  world.  Our 
Constitution  recognizes  no  other  power  than  that  of  persuasion  for  en- 
forcing religious  observances.  Let  the  professors  of  Christianity  recom- 
mend their  religion  by  deeds  of  benevolence,  by  Christian  meekness,  by 
lives  of  temperance  and  holiness.  Let  them  combine  their  efforts  to 
instruct  the  ignorant,  to  relieve  the  widow  and  the  orphan,  to  promul- 
gate to  the  world  the  Gospel  of  the  Saviour,  recommending  its  precepts 
by  their  habitual  example;  Government  will  find  its  legitimate  object  in 
protecting  them.  It  can  not  oppose  them  and  they  will  not  need  its 
aid.  Their  moral  influence  will  then  do  infinitely  more  to  advance  the 
true  interests  of  religion  than  any  measures  which  they  may  call  on 
Congress  to  enact.  The  Petitioners  do  not  complain  of  any  4nfringe- 
ments  of  their  rights.  They  enjoy  all  that  Christians  ought  to  ask  at 
the  hands  of  any  government — protection  from  all  molestation  in  the 
exercise  of  their  religious  sentiments.* 

Resolved,  that  the  Committee  be  discharged  from  the  further  con- 
sideration of  the  subject." 

NAVY    DEPARTMENT. 

Chapter  5,  under  Title  XIV.  of  the  Revised  Statutes  of  the 
United  States,  rehites  to  the  Naval  Academy.  Section  1526  is 
as  follows : 

"The  Secretary  of  the  Navy  shall  arrange  the  course  of  studies  and 
the  order  of  recitations  at  the  Naval  Academy  so  that  the  students  in 
said  institution  shall  not  be  required  to  pursue  their  studies  on  Sunday." 
(Vol.  1,  p.  1049.) 


*A  more  subtle  and  misleading  document  than  this  could  scarcely  be  framed. 
It  abounds  in  evasions  and  misstatements.  The  Sunday  mail  service  inevitably 
either  corrupts  the  conscience  or  shuts  out  those  who  refuse  to  be  corrupted.  In 
addition  to  more  than  a  hundred  thousand  employees,  it  requires  the  running  of 
numerous  mail  trains  with  their  crews.  It  places  the  government  in  the  attitude 
of  disobedience  to  God.  How  can  Christians  teach  the  principles  of  the  Gospel  to 
people  who  have  no  Sabbath?  What  excuse  ever  existed  for  Sunday  mails  is  takes 
away  by  the  telegraph. 


DEPARTMENT  OF  THE  INTERIOR.  185. 

The  General  Order  No.  50,  given  above  when  considering 
the  regulations  relating  to  the  Army  also  applies  to  the  Navy. 
Among  the  Navy  Regulations  the  following  are  in  point: 

"Article  2.  The  Commanders  of  vessels  and  naval  stations  to  which' 
chaplains  are  attached  shall  cause  divine  service  to  be  performed  on 
Sunday,  whenever  the  weather  and  other  circumstances  allow  it  to  be 
done;  and  it  is  earnestly  recommended  to  all  officers,  seamen,  and  other* 
in  the  naval  service  diligently  to  attend  at  every  performance  of  the 
worship  of  Almighty  God." 

Article  259,  paragraph  2.  "Sunday  shall  be  observed  on  board  of 
all  ships  and  at  naval  stations  in  an  orderly  manner.  All  labor  shall 
be  reduced  to  the  requirements  of  necessary  duty.  The  religious  tenden- 
cies of  officers  and  men  shall  be  recognized  and  encouraged."' 

The  Department  furnishes  the  following  additional  facts:  "It  is  the 
practice  and  custom  of  the  service  to  dispence  with  all  unnecessary 
work  on  board  ships  on  Sunday  and  to  give  the  men  every  opportunity 
for  the  use  of  the  day  for  religious  and  such  other  duties  as  their 
conscience  may  dictate.  No  drills  or  exercises  of  any  kind  except  those 
required  by  law,  of  general  uiuster  or  reading  the  Articles  of  War,  are 
carried  out  on  board  ship  on  Sunday. 

"It  may  be  further  stated  that  it  is  contrary  to  the  general  ])olicy 
of  the  Navy  Department  to  permit  work  on  Sunday  by  civilian  employes 
at  the  various  navy  yards,  except  in  an  emergency,  or  where  the 
exigency  of  the  service  may  require  the  same." 

DEPARTMENT   OF  THE  INTERIOR. 

In  addition  to  the  Art  of  Congress  relating  to  all  Executive 
Departments  of  the  Government,  there  are  regulations  adopted 
by  the  Department  for  the  Indian  School  Service,  in  which  reli- 
gious instruction  is  provided  for.  Under  "Religious  Instruction 
in  Indian  Schools"  Rule  9  declares  that  "Church  and  mass  attend- 
ance on  Sundays,  at  hours  agreed  upon  by  the  respective  pastors, 
will  be  strictly  insisted  upon  by  the  school  superintendent." 

Under  "J^utics  of  Field  Matrons"  operating  in  connection 
with  missions  among  the  Indians,  the  loth  rule  requires  them  to 
teach  "the  proper  observaPiCe  of  the  Sabbath  etc." 

DEPARTMENT  OF  AGRICULTURE. 

This  Department  has  certain  Rules  and  Regulations  among, 
which  there  is  one  relating  to  the  Sabbath.  It  is  found  in  B.  A.. 
I.  Order  No.  125.  subdivision  b  of  Rule  4  and  is  as  follows: 


i86  COMMERCE  AND  LABOR. 

"The  slaughtering  of  animals  shall  be  conducted  on  week  days 
between  the  hours  of  6  a.  m.  -and  7  p.  m.,  except  in  certain  cases  of 
emergency,  when  permission  to  slaughter  at  other  hours  may  be  granted 
by  the  inspector  in  charge.  No  slaughtering  shall  be  conducted  on 
Sundays  after  12  o'clock  noon.  Permission  to  make  any  permanent 
departure  from  the  above-designated  hours  shall  be  obtained  from  the 
Chief  of  the  Bureau  of  Animal  Industry." 

The  Department  furnishes  the  following  additional  information: 
^'Formerly  no  slaughtering  was  permitted  on  Sundays,  but  it  was  found 
that  the  Hebrews  in  the  large  cities  were  inconvenienced  by  this  ruling 
and  the  order  was  modified  accordingly." 

COMMERCE  AND  LABOR. 

The  Department  of  Commerce  and  Labor  has  issued  no 
orders  relating  to  the  matter  of  Sabbath  observance. 

EAWS  RELATING  TO  INTERNA!,  REVENUE,   ETC. 

Title  XXXV.  of  the  Revised  Statutes  of  the  United  States  treats  of 
"Internal  Revenue."  Chapter  4  is  entitled  "Distilled  Spirits."  Section 
3238  forbids  distilling  and  brewing  on  the  Sabbath  in  these  words:  "No 
malt,  corn,  grain,  or  other  material  shall  be  mashed,  nor  any  mash 
wort  or  beer  brewed  or  mado,  nor  any  still  used  by  a  distiller,  at  any 
time  between  the  hour  of  eleven  in  the  afternoon  of  any  Saturday  and 
the  hour  of  one  in  the  fornnoon  of  the  next  succeeding  Monday;  and 
every  person  who  violates  the  provisions  of  this  section  shall  be  liable 
to  a  penalty  of  one  thousand  dollars."     (Vol.  2,  p.  2129). 

In  computing  time  in  bankruptcy  proceedings,  the  first  day  of  the 
week  is  not  to  be  inchidod.     (Vol.  22,  p.  928). 

OPINIONS   OE   THE    UNITED    STATES    COURTS. 

Opinions  of  the  Courts  of  the  United  States  are  not  to  be 
looked  for  in  cases  arising  under  any  of  the  above  laws  and  regu- 
lations. Such  cases  do  not  exist.  In  many  instances,  however, 
cases  arising  under  State  laws  or  municipal  regulations  have 
been  carried  to  these  courts  and  opinions  of  considerable  value 
rendered.     These  will  now  be  considered. 

The  case  of  Soon  Hing  v.  Crowley  arose  under  an  ordinance 
of  the  Board  of  Supervisors  of  the  City  and  County  of  San  Fran- 
cisco, California,  which  prohibits  washing  and  ironing  in  public 
laundries  and  washhouses  within  defined  territorial  limits,  from 
ten  o'clock  at  night  till  six  in  the  morning,  and  at  any  hour  on 


OPINIONS  OF  THE  UNITED  STATES  COURTS.  187 

the  Lord's  day.  Soon  Hing  was  arrested  by  Crowley,  Chief  of 
Police  of  San  Francisco,  for  violating  this  ordinance.  While  in 
the  custody  of  the  officer  Soon  Hing  applied  to  the  Circuit  Court 
of  the  United  States  for  a  writ  of  habeas  corpus.  The  writ  was 
refused,- the  judges  being  divided  in  opinion  and  the  opinion  of 
the  presiding  judge  controlling.  The  case  went  to  the  Supreme 
Court  of  the  United  States  for  review.  One  of  the  points  on 
which  the  Circuit  Court  was  divided  was,  whether  the  section 
forbidding  work  in  laundries  on  the  Sabbath  is  void  on  the 
ground  that  "it  deprives  a  man  of  the  right  to  labor  at  all  times." 
Justice  Field  wrote  the  opinion  of  the  Supreme  Court  and  on  this 
point  spoke  as  follows : 

"Laws  setting  aside  Sunday  as  a  day  of  rest  are  upheld,  not  from 
any  right  of  the  government  to  legislate  for  the  promotion  of  religious 
observances,  but  from  its  right  to  protect  all  persons  from  the  physical 
and  moral  debasement  which  comes  from  uninterrupted  labor.  Such 
laws  have  always  been  deemed  beneficent  and  merciful  laws,  especially 
to  the  poor  and  dependent,  to  the  laborers  in  our  factories  and  work- 
shops and  in  the  heated  rooms  of  our  cities;  and  their  validity  has  been 
sustained  by  the  highest  courts  of  the  States."     (113  U.  S.  703,  1884). 

The  case  of  Hennington  v.  The  State  (90  Ga.  396),  men- 
tioned above  on  page  89  was  carried  to  the  Supreme  Court 
of  the  United  States  on  the  plea  that  the  law  is  such  a  regulation 
of  interstate  commerce  as  is  forbidden  to  the  States  by  the  Con- 
stitution of  the  United  States.  The  opinion  of  the  Supreme 
Court  of  Georgia  was  upheld  by  the  Supreme  Court  of  the 
United  States.     The  following  sentences  are  valuable : 

"In  our  opinion  there  is  nothing  in  the  legislation  in  question  which 
suggests  that  it  was  enacted  v/ith  the  purpose  to  regulate  interstate 
commerce,  or  with  any  other  purpose  than  to  prescribe  a  rule  of  civil 
duty  for  all  who,  on  the  Sabbath  day,  are  within  the  territorial  juris- 
-diction  of  the  State.  It  is  none  the  less  a  civil  regulation  because  the 
day  on  which  the  running  of  freight  trains  is  prohibited  is  kept  by 
many  under  a  sense  of  religious  duty.  The  Legislature  having,  as  will 
not  be  disputed,  power  to  enact  laws  to  promote  the  order  and  to  secure 
the  comfort,  happiness  and  health  of  the  people,  it  was  within  its  dis- 
cretion to  fix  the  day  when  all  labor,  within  the  limits  of  the  State, 
works  of  necessity  and  charity  excepted,  should  cease.  It  is  not  for 
the  judiciary  to  say  that  the  wrong  day  was  fixed,  much  less  that  the 
Legislature  erred  when  it  assumed  that  the  best  interests  of  all  required 
that  one  day  in  seven  should  be  kept  for  the  purposes  of  rest  from 
ordinary  labor.  .  .  . 


i88  OPINIONS  OF  THE  UNITED  STATES  COURTS 

"The  defendant  contends  that  the  running  on  the  Sabbath  day  of ' 
railroad  cars,  laden  with  interstate  freight,  is  committed  exclusively  to 
the  control  and  supervision  of  the  National  Government;  and  that, 
although  Congress  has  not  taken  any  affirmative  action  upon  the  sub- 
ject^ State  legislation  interrupting,  even  for  a  limited  time  only,  inter- 
state commerce,  whatever  may  be  its  object,  and  however  essential  such 
legislation  may  be  for  the  comfort,  peace  and  safety  of  the  people  of  the 
State,  is  a  regulation  of  interstate  commerce  forbidden  by  the  Consti- 
tution of  the  United  States.  Is  this  view  of  the  Constitution  and  of 
the  relation  between  the  States  and  the  General  Government  sustained 
by  the  former  decisions  of  this  court?  Is  the  admitted  general  power 
of  a  State  to  provide  by  legislation  for  the  health,  the  morals,  and  the 
general  welfare  of  its  people,  so  fettered  that  it  may  not  enact  any 
law  whatever  that  relates  to  or  affects  in  any  degree  the  conduct  of 
commerce  among  the  States?  If  the  people  of  a  State  deem  it  necessary 
to  their  peace,  comfort  and  happiness,  to  say  nothing  of  the  public 
health  and  the  public  morals,  that  one  day  in  each  week  be  set  apart 
by  law  as  a  day  when  business  of  all  kinds  carried  on  within  the  limits 
of  that  State  shall  cease,  whereby  all  persons  of  every  race  and  con- 
dition in  life  may  have  an  opportunity  to  enjoy  absolute  rest  and  quiet, 
is  that  result,  so  far  as,  interstate  freight  traffic  is  concerned,  attainable - 
only  through  an  affirmative  act  of  Congress  giving  its  assent  to  such 
legislation?"  A  number  of  cases  are  here  quoted  to  show  that  this  is 
not  true.  The  co;u't  then  said:  "Local  laws  of  the  character  mentioned 
have  their  source  in  the  powers  wiiich  the  States  reserved  and  never 
surrendered  to  Congress,  of  providing  for  the  public  health,  the  public 
morals  and  the  public  safety,  and  are  not,  within  the  meaning  of  the 
Constitution,  and  considered  in  their  own  nature,  regulations  of  inter- 
state commerce  simply  because,  for  a  limited  time  or  to  a  limited  extent, 
they  cover  the  field  occupied  by  those  engaged  in  such  commerce." 
(Hennington  v.  Georgia,  163  U.  S.  Reports,  299,  1895). 

Liability  for  damages  in  certain  cases  involving  acts  claimed 
to  be  violations  of  the  Sabbath  was  decided  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  P.  W.  &  B.  R.  Co.  v. 
Phil.  &  liavre  de  Grace  Steam  Towboat  Co.  The  following  is  a 
statement  of  tlie  case : 

The  latter  company  had  been  authorized  by  a  statute  of  Maryland 
to  construct  a  railway  bridge  over  the  mouth  of  the  Susquehanna  River 
at  Havre  de  Grace.  After  beginning  the  work  they  abandoned  it,  a 
number  of  piles  which  had  been  driven  being  cut  off  a  few  feet  below 
the  surface  of  the  water.  The  Towboat  Superior  came  info  collision 
with  one  or  more  of  these  piles  and  suffered  great  damage.  The  case 
came  first  before  the  District  Court  of  Maryland,  then  before  the  Circuit 
Court  of  the  United  States  and  finally  before  the  Supreme  Court.  The 
decision  each  time  favored  the  Towboat  Company.  The  contention  of 
the  Railroad  Company  v/as   that  the  vessel    began   its  voyage   on   the- 


OPINIONS  OF  THE  UNITED  STATES  COURTS.  189 

Lord's  (lay,  thus  violating  the  law  of  Maryland,  and  that  the  company 
was  not  entitled  to  recovor.     The  Court  said: 

"The  law  relating  to  the  observance  of  Sunday  defines  a  duty  of  a 
citizen  to  the  State,  and  to  the  State  only.  For  a  breach  of  this  duty 
he  is  liable  to  the  tine  or  penalty  imposed  by  the  statute  and  nothing 
more.  Courts  of  justice  have  no  power  to  add  to  this  penalty  the  loss 
of  a  ship,  by  the  tortious  conduct  of  another,  against  whom  the  owner 
has  committed  no  offence."     (23  How.  219,  1859). 

A  railroad  company  receiving  on  Sabbath  goods  for  shipment  is 
bound  to  keen  them  in  safe  custody  and  is  liable  for  their  destruction 
by  fire.     (24  How.  247,  1860). 

The  case  of  State  v.  Petit,  (74  Minn.  376),  involving  the  constitution- 
ality of  the  Minnesota  statute,  (see  above  page  108),  was  carried  to 
the  Supreme  Court  of  the  United  States.  The  opinion  of  the  Supreme 
Court  of  the  State  sustaining  the  constitutionality  of  the  law  was  up- 
held. The  indictment  against  Mr.  Petit  was.  keeping  open  a  barber  shop 
on  the  Sabbath.  The  Supreme  Court  of  the  United  States  declared  that 
"Keeping  open  a  barber  shop  on  Sunday  for  the  purpose  of  cutting  hair 
and  shaving  beards,  shall  not  be  deemed  a  work  of  necessity  or  charity." 
(177  U.  S.  164,  1899). 

A  case  came  before  the  United  .States  Circuit  Court,  Eastern 
District,  Arkansas,  in  1884,  founded  on  a  promissory  note  issued 
on  the  Lord's  day  in  Tennessee,  in  which  the  validity  of  con- 
tracts made  on  the  Sabbath  was  considered.  The  Court  held 
that  contracts  valid  where  made  are  valued  everywhere,  and 
that  this  note  was  valid  in  Tennessee.     The  following  sentences 

are  of  interest : 

"In  this  country  legislative  authority  is  limited  strictly  to  temporal 
affairs  by  written  constitutions.  Under  these  constitutions  there  can 
be  no  mingling  of  the  affairs  of  Church  and  State  by  legislative 
authority.  All  religions  are  tolerated  and  none  is  established.  Each 
has  an  equal  right  to  the  protection  of  the  law,  whether  Christians, 
Jews  or  infidels.  No  citizen  can  be  required  by  law  to  do,  or  refrain 
from  doing,  any  act  upon  the  sole  ground  that  it  is  a  religious  duty.  .  .  . 
The  State  protects  all  religious,  but  espouses  none.  .  .  .  The  statute 
then,  is  not  a  religious  regulation,  but  is  the  result  of  a  legitimate 
exercise  of  the  police  power,  and  is  itself  a  police  regulation. 

"Experience  has  shown  the  wisdom  and  necessity  of  having,  at 
stated  intervals,  a  day  of  rest  from  customary  toil  and  labor  for  man 
and  beast.  It  renews  tiagging  energies,  prevents  premature  decay, 
promotes  the  social  virtues,  tends  to  repress  vice,  aids  and  encourages 
religious  teachings  and  practice,  and  affords  an  opportunity  for  inno- 
cent and  healthful  amusement  and  recreation.  Neither  man  nor  beast 
can  stand  the  strain  of  constant  and  unremitting  toil.     Such  a  day,  when 


igo  OPINIONS  OF  THE  UNITED  STATES  COURTS. 

designated  by  the  State,  is  a  civil  and  not  a  religious  institution."' 
(Swan  V.  Swan,  21  Fed.  Rep.  299,  1884). 

The  Supreme  Court  of  the- United  States  decided  a  case  in  1883  in- 
volving the  validity  of  contracts  made  on  the  first  day  of  the  week,  in 
which  there  were  various  complications.  Certain  agents  for  the  Gibbs 
&  Sterrett  Manufacturing  Company  had  sold  mowing  and  reaping 
machines  for  the  company  in  the  State  of  Wisconsin.  The  agents  had 
not  the  right  to  close  the  contract,  but  it  had  to  be  ratified  by  the' 
principal.  The  party  to  whom  the  machines  were  sold  did  not  know" 
this.  The  agreement  was  signed  on  the  Sabbath  but  not  delivered  till 
another  day.  The  legality  of  the  contract  was  decided  negatively  by 
the  Circuit  Court  before  which  the  case  first  came  in  the  State  of  Wis* 
consin.  It  was  carried  to  the  Supreme  Court  of  the  United  States  and 
the  opinion  of  the  Circuit  Court  was  reversed.  The  following  position, 
was  first  afiirmed: 

"The  ground  upon  which  courts  have  refused  to  maintain  actions 
on  contracts  made  in  contravention  of  statutes,  for  the  observance  of 
the  Lord's  day  is  the  elementary  principle  that  one  who  has  himself 
participated  in  a  violation  of  law  cannot  be  permitted  to  assert  in  a 
court  of  justice  any  right  founded  upon  or  growing  out  of  the  illegal 
transaction." 

But  it  was  held  that: 

"An  agreement  signed  by  the  maker  on  Sunday,  but  not  delivered 
to  the  other  party  on  that  day,  is  no  violation  of  a  statute  making  it 
a  penel  offence  to  do  business  on  the  first  day  of  the  week. 

"A  contract  made  on  Sunday  with  an  agent  of  the  other  party  with- 
out his  knowledge,  the  agent  having  no  authority  to  bind  his  principal, 
and  ratified  by  the  principal  on  another  day  of  the  week  and  then  ex- 
changed, is  not  void  as  a  violation  of  a  statute  making  it  penal  to  do 
business  of  Sunday."     (Ill  U.  S.  597). 

In  the  Circuit  Court,  W.  D.  Tennessee,  the  constitutionality 
of  Sabbath  laws  was  sustained  in  1891.  In  this  case  R.  M.  King 
was  indicted  in  the  Circuit  Court  of  Obion  County,  for  plowing 
on  the  first  day  of  the  week.  Mr.  King  was  a  Seventh  Day  Ad- 
ventist,  and  as  he  kept  the  seventh  day  of  the  week  as  the  Sab- 
bath, claimed  exemption  from  the  operation  of  the  Sabbath  law. 
He  was  repeatedly  fined  for  his  persistent  disregard  of  the  law. 
His  neighbors  had  him  indicted  as  a  common  nuisance,  for  a 
crime  at  common  law,  to  secure  severer  punishment  for  the  mis- 
demeanor than  the  penalty  under  the  statute.  He  was  tried  by 
a  jury  and  his  fine  fixed  at  $75,  and  was  committed  to  jail  till 
the  fine  and  costs  should  be  paid.  He  appealed  to  the  Supreme 
Court  which  affirmed  the  conviction  without  giving  a  written 
opinion.     He  then  filed  a  petition  for  a  habeas  corpus,  alleging 


OPINIONS  OF  THE  UNITED  STATES  COURTS.  191 

that  he  had  been  deprived  of  Hberty  without  due  process  of  law^ 
that  he  had  been  denied  the  equal  protection  of  tlie  law  guaran- 
teed by  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States,  and  that  he  had  been  denied  the  rehgious  freedom 
guaranteed  by  the  Constitution.  The  Sheriff  cf  t^^c  county  de- 
nied the  illegaHty  of  the  imprisonment,  and  the  proof  was  taken 
before  the  Circuit  Court  of  the  United  States,  judge  Hanunond 
in  deHvering  the  opinion  of  the  court  said  : 

"It  is  a  common  nuisance  in  Tennessee,  according  to  its  common 
law  to  work  on  Sunday.  .  .  We  do  not  say  that  Sunday  observance  may 
be  compelled  upon  this  principle,  as  a  religious  act.  .  .  Nor  do  we  be- 
lieve King  was  wrongfully  convicted,  because  Christianity  is  not  a  part 
of  the  law  of  the  land.  .  .  .  for  it  surely  is;  but  not  in  the  dangerous 
sense  pointed  out  by  Mr.  Jefferson  and  other  writers  following  him  in 
the  controversy  over  it.  The  fourth  commandment  is  neither  a  part 
of  the  common  law  or  the  statute,  and  disobedience  to  it  is  not  punish- 
able by  law;  and  certainly  the  substitution  of  the  first  day  of  the  week 
for  the  seventh  as  a  part  of  the  commandment  has  not  been  ac- 
complished by  municipal  process,  and  the  substitution  is  not  binding 
as  such.  The  danger  that  lurks  in  this  application  of  the  aphorism  has 
been  noted  by  every  intelligent  writer  under  my  observation,  and  all 
agree  that  this  commandment,  either  in  its  original  form,  as  practiced 
by  petitioner,  or  in  its  substituted  application  to  the  first  day  of  the 
week,  is  not  more  a  part  of  the  common  law  than  the  doctrine  of  the 
Trinity  or  the  Apostles'  Creed.  Nevertheless,  by  a  sort  of  factitious 
advantage,  the  observers  of  Sunday  have  secured  the  aid  of  the  civil 
law,  and  adhere  to  that  advantage  with  great  tenacity,  in  spite  of  th& 
clamor  for  religious  freedom  and  the  progress  that  has  been  made  in 
the  absolute  separation  of  Church  and  State,  and  in  spite  of  the  strong 
and  merciless  attack  that  has  always  been  ready,  in  the  field  of  contro- 
versial theology,  to  be  made,  as  it  has  been  made  here,  upon  the  claim 
for  divine  authority  for  the  change  from  the  seventh  to  the  first  day  of 
the  week.  Volumes  have  been  written  upon  that  subject,  and  it  is  not 
useful  to  attempt  to  add  anything  to  it  here.  We  have  no  tribunals  for 
its  decision,  and  the  efforts  to  extirpate  the  advantage  above  mentioned 
by  judicial  process  in  favor  of  a  civil  right  to  disregard  the  change, 
seem  to  me  quite  useless.  The  proper  appeal  is  to  the  legislature.  For 
the  courts  cannot  change  that  which  has  been  done,  however  done,  by 
the  civil  law  in  favor  of  the  Sunday  observers.  The  religion  of  Jesua 
Christ  is  so  interwoven  with  the  texture  of  our  civilization,  and  every 
one  of  its  institutions,  that  it  is  impossible  for  any  man,  or  set  of  men> 
to  live  among  us,  and  find  exemption  from  its  influences  and  restraints. 
Sunday  observance  is  so  essentially  a  part  of  that  religion  that  it  is 
impossible  to  rid  our  laws  of  it,  quite  as  impossible  as  to  abolish  the 
custom  we  have  of  using  the  English  language,  or  clothing  ourselves 


•192    .  OPINIONS  OF  THE  UNITED  STATED  COURTS. 

Tvith  the  garments  appropriate  to  our  sex We  cannot  have  in 

individual  cases  a  perfect  observance  of  Sunday,  according  to  the  rules 
of  religion;  and,  indeed,  the  sects  are  at  war  with  each  other  as  to  the 
mode  of  observance.  And  yet  no  wise  man  will  say  that  there  shall 
therefore  be  no  observance  at  all.  Government  leaves  the  warring  sects 
to  observe  as  they  will,  so  they  do  not  disturb  each  other;  and  as  to  the 
non-observer,  he  cannot  be  allowed  h'is  fullest  personal  freedom  in  all 

respects One  may,  and  many  thousands  do,  work  on  that  day, 

without  complaint  from  any  source;  but  if  one  ostentatiously  labors  for 
the  purpose  of  emphasizing  his  distaste  for  or  his  disbelief  in  the 
custom,  ho  may  be  made  to  suffer  for  his  defiance  by  persecutions,  if 
jou  call  them  so,  on  the  part  of  the  great  majority,  who  will  compel 
him  to  rest  when  they  rest,  as  it  does  in  many  other  instances  compel 
men  to  yield  individual  tastes  to  the  public  taste,  sometimes  by  a 
positive  law,  and  sometimes  by  a  universal  public  opinion  and  practice 
far  more  potential  than  a  formal  statute.  There  is  scarcely  any  man 
who  has  not  had  to  yield  something  to  this  law  of  the  majority  which 
is  itself  a  universal  law,  from  which  we  cannot  escape  in  the  name  of 

equal  rights  or  civil  liberty The  fact  that  religious  belief  is  one 

of  the  foundations  of  the  custom  is  no  objection  to  it,  as  long  as  the 
individual  is  not  compelled  to  observe  the  religious  ceremonies  others 
choose  to  observe  in  connection  with  their  rest  days.  As  we  said  In  the 
outset,  not  one  of  our  laws  or  institutions  or  customs  is  free  from  the 
influence  of  our  religion,  and  that  religion  has  put  our  race  and  people 
in  the  very  front  of  all  nations  in  everything  that  makes  the  human 
race  comfortable  and  useful  in  the  world.  This  very  principle  of 
religious  freedom  is  the  product  of  our  religion,  as  all  our  good  customs 
are,  and  if  it  be  desirable  to  extend  that  principle,  to  the  ultimate  con- 
dition that  no  man  shall  be  in  the  least  restrained,  by  law  or  public 
opinion,  in  hostility  to  religion  itself,  or  in  the  exhibition  of  individual 
eccentricities  or  practices  of  sectarian  peculiarities  of  religious  ob- 
servances of  any  kind,  or  be  fretted  with  laws  colored  by  any  religion 
that  is  distasteful  to  anybody,  those  who  desire  that  condition  must, 
jiecessarily,  await  its  growth  into  that  enlarged  application.  But  the 
courts  cannot,  in  cases  like  this,  ignore  the  existing  customs  and  laws 
of  the  masses."     (In  re  King,  46  Federal  Reports,  905,  1891). 

On  the  5th  of  August,  1892  (Stat,  ist  Sess.,  S2d  Cong.,  p. 
389),  Congress  passed  an  act  "to  aid  in  carrying  out  the  act 
of  April  25,  1890,  with  reference  to  the  World's  Columbian  Ex- 
position.    Section  4  of  this  act  is  as  follows: 

"That  it  is  hereby  declared  that  all  appropriations  herein  made  for, 
or  pertaining  to,  the  World's  Columbian  Exposition  are  made  upon  the 
condition  that  the  said  exposition  shall  not  be  opened  to  the  public  on 
the  first  day  of  the  week,  commonly  called  Sunday;  and  if  the  said 
appropriations  be  accepted  by  the  corporation  of  the  State  of'  Illinois, 
known  as  the  World's  Columbian  Commission,  created  by  the  act  of 


OPINIONS  OF  THE  UNITED  STATES  COURTS.  193 

•congress  of  April  twenty-fifth,  eighteen  hundred  and  ninety,  to  make 
such  rules  or  modification  of  the  rules  of  said  corporation  as  shall  re- 
quire the  closing  of  the  exposition  on  the  first  day  of  the  week  com- 
monly called  Sunday." 

"October  25,  1892,  rule';  were  adopted  by  the  corporation  and  the 
commission,  and  among  them  one  providing  that  the  gates  should  be 
open  from  May  1st  to  October  30th,  every  day  of  the  week  except  Sun- 
day." 

'Among  the  appropriations  made  on  August  5th,  1892  was  one  of 
"five  million  pieces  of  silver  half  dollars.  The  whole  amount  appro- 
priated on  that  day  amounted  to  two  million,  five  hundred  thousand 
dollars.  Of  these  souvenir  half  dollars  there  were  transmitted  to  the 
World's  Columbian  Commission  3,858,240,  the  remainder  being  re- 
tained, for  expenses  of  judges  etc.,  of  the  Exposition,'  "until  said 
World's  Columbian  Exposition  shall  have  furnished  to  the  satisfaction 
of  the  Secretary  of  the  Treasury,  full  and  adequate  security  for  the  re- 
turn and  payment,  by  said  World's  Columbian  Exposition  to  the 
treasury,  of  the  sum  of  five  hundred  and  seventy  thousand,  eight  hun- 
dred and  eighty  dollars,  on  or  before  October  first,  eighteen  hundred  and 
ninety-three;  and  until  such  security  shall  have  been  furnished  by  said 
World's  Columbian  Exposition,  this  appropriation  or  any  portion  there- 
of, shall  not  be  available." 

The  Board  of  Directors  of  the  World's  Columbian  Exposition  chose 
t-o  view  this  as  a  breach  of  fait:i  on  the  part  of  the  United  States 
Government,  a.nd  "on  the  12  of  May  1893  the  Board  of  Directors  resolved 
•  to  open  the  grounds  but  not  the  buildings,  on  Sunday."  On  May  16th  it 
was  resolved  to  open  both  the  buildings  "during  the  Sundays  of  the  ex- 
;position  period,"  and  to  amend  the  rules  accordingly.  At  a  meeting  of 
the  World's  Columbian  Commission  held  on  May  22d,  1893  majority  and 
minority  reports  were  presented  on  the  amended  rule.  By  a  vote  of 
29  to  28  the  Commission  refused  to  modify  the  rule  as  amended. 

To  avoid  confusion  it  should  be  stated  that  the  Commission  was 
a  national  body,  and  the  directors  were  a  local  board  accountable  to 
the  Commission.  The  first  case  before  the  courts  was  brought  by  Cling- 
man,  a  stockholder,  who  filed  a  bill  in  the  Superior  Court  of  Cook 
County,  to  restrain  the  authorities  from  closing  the  Exposition  on  the 
Sabbath.     The  order  was  issued,  but  was  afterwards  reversed. 

Next  the  Attorney  General  of  the  United  States  authorized  the 
United  States  Attorney  for  the  Northern  District  of  Illinois  to  file  a  bill 
In  the  Federal  Court  in  the  name  of  the  United  States  to  restrain  the 
ofiicers  of  the  exposition  from  throwing  open  the  gates  of  the  expo- 
sition on  the  Lord's  day.  The  case  was  heard  by  Circuit  Judges  Woods 
and  Jenkins,  and  District  Judge  Grosscup.  The  Circuit  Judges  granted 
the  temporary  order.  District  Judge  Grosscup  dissenting.  Judge  Woods 
dlclared  that  "the  government  has  possession  of  the  grounds,  has  prop- 
erty*there  and  has  pecuniary  interests  in  imported  goods  subject  to 
•duty,"  and  therefore  has  the  right  "to  seek  relief  in  a  court  of  equity. 


194  OPINIONS  OF  THE  UNITED  STATES  COURTS. 

Judge  Jenkins  held  th^t  the  gift  of  $2,500,000  "upon  condition  that  if 
the  gift  were  accepted  the  exposition  should  be  closed  on  Sunday,"  con- 
stituted a  charitable  gift  upon  condition,  which  condition  is  enforceable- 
in  equity.  Judge  Jenkins  in  upholding  the  constitutionality  of  the  act 
of  congress,  said:  "It  is  said  that  this  legislation  by  congress  is  with- 
out the  power  of  congress;  that  it  is  unconstitutional;  that  it  seeks  to 
establish  religious  tests.  I  cannot  concur  in  the  objection.  Legislation 
with  respect  to  the  first  day  of  the  week  has  nothing  to  do  with  the 
matter  of  religious  tests  or  the  compulsion  of  a  particular  religious  be- 
lief or  service.  It  is  founded  upon  the  necessities  of  the  human  race, 
as  taught  by  experience,  the  needed  rest  which  human  beings  require 
from  the  avocations  of  six  days,  labor;  and  it  is  justified  by  that  ex- 
perience, outside  of  and  irrespective  of  any  question  of  creed  or  any 
question  of  religion;  and  all  that  the  laws  seek  to  do — the  laws  of  the 
several  states  which  have  existed  almost  from  the  existence  of  the 
States— is  to  provide  for  that  needed  rest,  and  to  provide  for  non-inter- 
ruption in  that  rest  and  in  such  religious  services  in  which  any  citizen 
may  choose  to  indulge.  It  is  not  an  imposition  upon  any  one  of  com- 
pulsion in  respect  to  religious  belief,  or  in  respect  to  attendance  at 
church.  It  provides  simply  for  the  protection  and  for  the  peace  of 
those  who  may  choose  to  attend  church,  that  they  shall  not  be  inter- 
rupted by  labor  on  that  day."  (United  States  v.  World's  Columbian  .Ex- 
position.   56  Feb.  630,  1893). 

This  case  was  appealed  and  came  before  the  Circuit  Court  of  Ap- 
peals, Seventh  Circuit,  which  rendered  an  opinion,  dissolving  the  in- 
junction, July  26,  1893.  This  means,  not  that  the  gates  may  not  be 
closed,  but  that  the  proper  course  was  by  action  at  law,  not  by  injunc- 
tion proceeding  in  a  court  of  equity. 

The  position  of  Judge  Jenkins  as  to  the  jurisdiction  of  the  United 
States  was  denied.  It  was  declared  that  "congress  had  the  right  to 
direct  the  gates  to  be  closed  on  any  day  of  the  week,  and  has  given  such 
direction  in  the  appropriation  acts  of  1892.  But  in  that  legislation  con- 
gress did  not  affect  to  be  acting  in  the  exercise  of  the  police  power,  or 
as  a  matter  of  administrative  detail  upon  the  theory  of  absolute  con- 
trol." In  reversing  the  decision  of  the  lower  court  it  was  said,  "we 
can  discover  no  tenable  ground  excepting  the  case  from  the  ordinary 
rule  which  requires,  in  order  to  the  exercise  of  jurisdiction  in 
chancery,  some  injury  to  property,  whether  actual  or  prospective,  some 
invasion  of  property  or  civil  rights;  some  injury,  irreparable  in  its 
nature,  and  which  cannot  be  redressed  at  law.  The  application  of  that 
rule  is  fatal  to  the  maintenance  of  the  order  under  review."  (World's 
Columbian  Exposition  v.  United  States,  56  Fed.  654,  1893). 

While  there  is  much  that  is  satisfactory  in  the  attitude  of  the 
Government  of  the  United  States  on  the  Sabbath  question,  there 


OPINIONS  OF  THE  UNITE  I  i  STATES  COURTS. 


195 


is  also  much  that  is  open  to  criticism.  The  truth  is  that  we  have; 
in  this  investigation  overwhehning  evidence  that  within  the  civil 
and  political  sphere  there  must  be  radical  reform  to  save  the 
Sabbath  as  a  civil  institution. 


CHAPTER   VIIL 

THE  FIVE-FOLD  BASIS  FOR  SABBATH  LAWS. 

No  institution  among  civilized  men  is  the  subject  of  more 
frequent,  more  zealous  and  more  protracted  controversy  than  the 
Sabbath.  There  is  no  aspect  of  it  that  is  not  made  a  matter  of 
dispute.  Its  orgin,  its  perpetuity,  the  day  of  the  week  on  which 
it  occurs,  the  manner  of  its  observance,  its  place  in  civil  life,  to- 
gether with  the  right  of  the  States  to  enact  laws  for  its  protection, 
are  all  questions  over  which  there  have  been  sharp  debates. 

Our  special  theme  is  the  place  of  the  Sabbath  in  civil  life. 
In  the  discussion  of  it  all  other  aspects  of  the  general  question 
can  receive  only  incidental  consideration. 

In  the  present  stage  of  the  controversy  about  the  Sabbath, 
no  other  division  of  the  general  question  stands  so  much  in 
need  of  calm  and  thorough  investigation.  No  investigation  re- 
lating to  the  whole  question  will  be  more  helpful  to  the  right 
understanding  of  the  principles  involved,  or  lead  more  surely  to 
the  proper  solution  of  the  problem  as  to  Sabbath  laws  than  an 
investigation  of  these  laws  themselves  and  of  the  judicial  opin- 
ions rendered  under  them.  There  is  a  general  misapprehension 
of  the  nature  of  these  laws  and  of  the  constitutional  grounds  on 
which  they  rest.  Their  best  vindication  is  a  full  and  accurate 
presentation  of  their  character  and  of  the  grounds  on  which  the 
courts  sustain  their  constitutionality. 

To  assist  in  obtaining  at  one  glance  a  comprehensive  view  of 

196 


THE  FIVE-FOLD  BAiJS  FOR  SABBATH  LAWS.  197 

our  Sal^bath  laws  and  the  grounds  on  which  their  constitution- 
ality is  sustained,  this  chapter  will  present  a  summary  of  the 
preceeding  investigations. 

In  the  study  of  other  aspects  of  the  question,  such  as  the  di- 
vine appointment  of  the  Sabbath  and  the  perpetuity  of  the 
Fourth  Commandment,  the  day  to  be  observed  and  the  manner  of 
observing  it,  the  Scriptures  constitute  the  principal  authority  to 
which  appeal  is  to  be  made.  But  after  these  questions  are  set- 
tled, even  if  the  settlement  should  receive  unanimous  approval 
(which  unhappily  is  not  the  case),  there  still  remain  for  settle- 
ment such  questions  as  the  right  and  duty  of  the  State  to  enact 
rest-day  laws,  and  the  proper  boundaries  of  the  prohibitions  and 
requirements  of  such  laws.  It  is  true  that  the  Scriptures  clearly 
teach  that  the  State  is  under  obligation  to  keep  the  Sabbath  by 
resting  its  machinery  on  that  day,  and  that  it  should  safeguard 
the  peace  and  quiet  of  the  day  by  compelling  the  cessation  of 
worldly  employments  and  recreations.  But  in  this  country  with 
its  heterogeneous  population  this  view  of  the  authoritative  teach- 
ing of  Scripture  does  not  receive  universal  assent.  Some  deny 
the  perpetual  obligation  of  the  law  of  the  Sabbath,  and  with  this 
denial  they  would  demolish  all  authority  for  civil  Sabbath  laws. 
Others  admit  the  perpetuity  of  the  Sabbath,  but  deny  that  it  has 
any  claim  upon  the  State  for  protection.  Others  hold  that  the 
Sabbath  law  has  been  repealed  and  the  Sabbath  as  an  institution 
abolished,  but  that  the  first  day  of  the  week  is  to  be  celebrated 
in  honor  of  Christ's  resurrection,  not  as  a  Sabbath  appointed  by 
God,  but  as  a  semi-holiday  appointed  by  men.  While  this  class 
do  not  oppose  all  "Sun(la\"  legislation  they  believe  such  legis- 
lation should  be  exceedingly  lenient.  Others  would  attach  no 
sanctity  whatever  to  the  da\-  and  would  have  it  set  apart  by  law 
merely  as  a  holiday,  no  legal  compulsion,  however,  to  be  em- 
ployed to  enforce  its  observance  any  more  than  in  the  case  of 
other  holidays,  but  ever}'  one  being  allowed  to  seek  his  own 
pleasure  and  do  his  own  works,  regardless  of  the  annoyance  he 
may  occasion  to  others. 

These  conflicting  views  concerning  the  ."^aljbath  and  Sab- 
bath laws  have  been  productive  of  untold  harm.  The  Supreme 
Court  of  New^  Hampshire,  in  Allen  v.  Deming.  spoke  as  follows 
with  reference  to  this  variety  of  opinion  : 


198  CLASSIFICATION  OF  STATES. 

"In  the  judgment  of  many  persons,  such  a  law  is  impolitic, 
and  ought  never  to  have  been  enacted,  and  they  easily  reach  the 
illogical  result,  that  therefore  it  should  be  disregarded  by  those 
whose  duty  it  would  otherwise  be  to  enforce  it,  or  at  least  great 
astuteness  may  be  properly  exercised  to  defeat  its  operation.  The 
law  is  alleged  to  be  difficult  in  its  application  and  unjust  in  its 
effects."  "Some  tribunals  even  have  seemed  to  consider  it  as  a 
law  which  had  better  be  suffered  to  pass  in  silence,  upon  the 
ground  substantially  that  it  had  been  repealed  bv  public  opin- 
ion."    (14  N.  H.  133,  1843.) 

In  the  midst  of  this  confusion  and  conflict  about  Sabbath 
laws  where  shall  we  look  for  light?  To  what  umpire  shall  we 
appeal  for  the  settlement  of  the  points  in  dispute?  No  one 
class  of  citizens  considered  as  a  fragment  of  our  population  and 
authorized  to  speak  for  none  but  themselves,  has  the  right  to 
give  the  final  authoritative  answer.  Why  not  go  to  the  State 
itself  for  the  answer?  Why  not  examine  the  laws  themselves 
and  the  opinions  of  the  courts  handed  down  in  cases  arising 
under  these  laws?  If  these  voices  are  listened  to,  misapprehen- 
sions will  be  removed,  prejudice  will  vanish,  and  opposition  will 
be  seen  to  be  groundless. 

We  cannot  avoid  this  legal  investigation  even  if  we  would. 
Opponents  of  the  law  have  chosen  the  field  on  which  they  pro- 
pose to  wage  the  warfare,  they  have  thrown  down  the  gage  of 
battle,  and  there  is  no  alternative  but  to  yield  our  Sabbath  laws 
or  meet  and  defeat  the  antagonists  on  their  chosen  ground. 

CIvASSlFlCATlON    Ol'    STATES. 

With  respect  to  the  character  of  their  Sabbath  laws  or  the 
non-existence  of  such  laws  the  States  and  Territories  may  be 
divided  into  five  classes  as  is  shown  in  preceeding  chapters. 

The  first  class  is  composed  of  those  whose  laws  are  framed 
according  to  the  British  model  and  prohibit  on  the  Lord's  day 
labor,  business  or  work  of  one's  ordinary  calling  only.  This 
class  includes  Georgia,  Indiana,  North  Carolina,  Rhode  Island 
and  South  Carolina. 

In  the  second  class  are  to  be  placed  all  those  whose  Sab- 
bath laws  contain  strong  and  comprehensive  prohibitory  clauses 


CLASSIFICATION  OF  STATES.  199 

'lorbidding  labor,  business,  amusements,  fishing,  hunting,  etc., 
and  make  few  exceptions  to  the  operation  of  the  law  besides 
works  of  necessity  and  charity.  This  class  includes  Arkansas, 
■Connecticut,  Delaware,  Florida,  Indian  Territory,  Iowa,  Kansas, 
Maine,  Maryland,  Michigan,  Missouri,  North  Dakota,  Ohio, 
Oklahoma,  Pennsylvania,  South  Dakota,  Tennessee  and  Utah. 

The  third  class  embraces  those  whose  prohibitory  clauses 
are  materially  weakened  by  making  many  exceptions  besides 
works  of  necessity  and  charity.  Some  of  these  exceptions  are 
here  noted.  Alabama,  Kentucky,  Mississippi,  Texas,  Vermont, 
Virginia  and  West  Virginia  make  an  exception  of  railroads. 
New  Jersey,  excepts  Sunday  trains  and  legal  notices  in  Sunday 
newspapers.  Massachussets  and  New  York  permit  the  sale  of 
tobacco,  the  printing  and  sale  of  newspapers,  and  the  latter 
State  permits  also  the  sale  of  fruit  and  confectionery.  Minneso- 
to  allows  the  printing  and  sale  of  newspapers.  The  Wyoming 
law  makes  exceptions  of  newspapers,  railroads,  telegraph  com- 
panies, news  depots,  farmers,  mechanics,  furnaces,  smelters,  glass 
works,  venders  of  ice  cream,  milk,  fresh  meat  and  bread.  The 
law  of  Louisiana  excepts  newspapers  and  printing  offices,  book 
stores,  public  and  private  markets,  bakeries,  dairies,  railroads, 
theaters  and  other  places  of  amusement. 

The  fourth  class  includes  those  States  the  prohibitory 
clauses  of  whose  Sabbath  laws  are  inherently  weak.  The  laws 
of  Colorado,  Illinois  and  New  Mexico  prohibit  on  the  Lord's  day 
only  such  labor  and  amusements  as  disturb  congregations  and 
■families.  Business  is  not  mentioned.  New  Hampshire  forbids 
such  secular  business  or  labor  as  disturbs  others.  Montana  pro- 
hibits neither  labor  nor  trade.  Nebraska  does  not  prohibit 
trade.  Oregon  does  not  prohibit  labor.  Washington  does  not 
prohibit  labor  and  weakens  the  clause  prohibiting  crimes  against 
the  public  peace  by  adding  after  the  enumeration  of  "riot,  fight- 
ing or  offering  to  fight,  horse-racing,  or  dancing."  the  clause, 
"^'whereby  any  worshipping  assembly  or  private  family  is  dis- 
turbed." 

The  fifth  class  embraces  those  that  have  no  Sabbath  laws. 
Tiiis  class  includes  Arizona,  California  and  Idaho. 


200  THELR  CONSTITUTION  A  LTY  IN  DISPUTE. 

THEIR    CONSTITUTIONALITY    IN    DISPUTE. 

The  question  of  the  constitutionality  of  our  Sabbath  laws:- 
has  often  been  in  dispute  before  our  courts,  both  State  and  Fed- 
eral In  these  disputes  opponents  appeal  to  both  the  State  and 
the  National  Constitution.  The  clauses  upon  which  reliance  is- 
placed  are  those  that  guarantee  religious  liberty.  The  purport 
of  these  clauses  as  found  in  all  our  State  Constitutions  is  the 
same.  A  few  extracts  will  show  their  character.  The  Declara- 
tion of  Rights  in  the  Constitution  of  Maryland  says  "That  as  it  is 
the  duty  of  every  man  to  worship  God  in  such  manner  as  he 
thinks  most  acceptable  to  Him,  all  persons  are  equally  entitled 
to  protection  in  their  religious  liberty;  wherefore,  no  persom 
ought,  by  any  law,  to  be  molested  in  his  person  or  estate  on  ac- 
count of  his  religious  persuasion,  or  profession,  or  for  his  re- 
ligious practice,  unless  under  the  color  of  religion,  he  shall  dis- 
turb the  good  order,  peace  or  safety  of  the  State,  or  shall  in- 
fringe the  laws  of  morality,  or  injure  others  in  their  natural,  civil 
or  religious  rights ;  nor  ought  any  person  to  be  compelled  tO' 
frequent,  or  maintain,  or  contribute,  unless  on  contract,  to  main- 
tain, any  place  of  worship,  or  ministry." 

The  Constitution  of  the  State  of  New  York  declares  that 
"The  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  without  discrimination  or  preference,  shall  forever  be 
allowed  in  this  State  to  all  mankind ;  .  .  .  .  but  the  liberty  of 
conscience  hereby  secured  shall  not  be  so  construed  as  to  ex- 
cuse acts  of  licentiousness,  or  justify  practices  inconsistent  with 
the  peace  or  safety  of  this  State." 

The  Constitution  of  Pennsylvania  declares  that  "All  men 
have  a  natural  and  indefeasible  right  to  worship  Almighty  God 
according  to  the  dictates  of  their  own  consciences;  no  man  can 
of  right  be  compelled  to  attend,  erect  or  support  any  place  of 
worship,  or  to  maintain  any  ministry  against  his  consent ;  no  hu- 
man authority  can,  in  any  case  whatever,  control  or  interfere 
with  the  rights  of  conscience  and  no  preference  shall  ever  be- 
given  by  law  to  any  religious  establishments  or  modes  of  wor- 
ship." 

Similar  provisions  are  found  in  the  constitutions  of  all  the 
States.     In  many  a  conflict  they  have  been  appealed  to  before 


SABBATH  LA  WS  CONSTITUTIONAL.  201 

courts  of  law  to  establish  the  unconstitutionality  of  Sabbath  laws. 
A  sentence  in  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States  is  also  sometimes  appealed  to  for  the  same 
purpose.  It  is  as  follows :  "No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States,  nor  shall  any  State  deprive  any  person  of 
life,  liberty  or  property,  without  due  process  of  law,  nor  deny  to 
any  person  Avithin  its  jurisdiction  the  equal  protection  of  the 
laws." 

In  some  cases^  Section  10,  Article  i,  of  the  Constitution  of 
the  United  States,  which  prohibits  the  States  from  passing  any 
law  impairing  the  obligation  of  contracts,  is  used  as  the  basis  of 
an  argument  against  the  contitutionality  of  the  Sabbath  law. 

It  has  been  contended,  on  the  strength  of  these  provisions 
that  all  laws  are  unconstitutional  which  prohibit  on  the  Sabbath 
ordinary  labor  and  business,  the  keeping  open  of  saloons,  the 
operating  of  theaters,  fishing,  hunting,  playing  base  ball,  etc. 

SABBATH   LAWS  CONSTITUTIONAL. 

If  it  could  be  successfully  maintained  that  Sabbath  laws  vio- 
late constitutional  provisions  safeguarding  property,  contracts 
and  liberty,  they  would  of  necessity  disappear  from  our  statute 
books.  But  with  singular  unanimity  the  constitutionality  of 
these  laws  has  been  sustained  by  our  courts.  The  grounds  on 
which  these  opinions  rest  are  not  always  the  same.  Neither  do 
our  judges  always  make  the  best  use  of  the  strongest  grounds  on 
which  the  constitutionality  of  these  laws  can  be  maintained.  But 
it  is  a  fact  that  should  command  general  attention,  and  lead  to 
serious  thought  even  those  who  would  sacrilegiously  break  down 
all  Sabbath  legislation,  that  VN^ith  scarcely  an  exception  the  con- 
stitutionality of  our  Sabbath  laws  has  been  upheld  by  the  Courts. 
The  grounds  on  which  these  opinions  of  the  courts  rest  are 
worthy  of  most  careful  study. 

FIRST    GROUND TlIEY    INVADE    NO    CONSTITUTIONAL    RIGHT. 

In  a  preceding  paragraph  constitutional  provisions  were 
quoted  upon  which  reliance  has  been  placed  in  efforts  to  secure 


:202  THEY  INVADE  NO  CONSTITUTIONAL  RIGHTS. 

opinions  of  courts  against  the  constitutionality  of  Sabbath  laws. 
The  argument  used  is  that  when  the  law  stops  ordinary  worldly 
labor,  closes  a  store  or  a  saloon,  shuts  the  doors  of  a  theater, 
prevents  a  horse  race  or  a  game  of  base  ball,  on  the  first  day  of 
the  week,  it  is  interfering  with  that  liberty  which  is  guaranteed  by 
the  Constitution.* 

For  the  purpose  of  the  present  discussion,  human  actions 
may  be  divided  into  three  classes:  (i)  those  which  conscience 
approves  and  requires ;  (2)  those  which  conscience  condemns 
and  forbids ;  (3)  those  about  which  conscience  gives  no  authori- 
tative decision  either  way,  and  whether  done  or  not  done  no  re- 
grets are  experienced.  To  one  or  another  of  these  classes  all 
acts  dealt  with  by  Sabbath  laws  belong.  It  is  quite  clear  that 
if  these  laws  prohibit  men  from  doing  what  conscience  requires 
■or  seek  to  constrain  them  to  do  what  conscience  forbids,  rights 
are  invaded  and  the  constitution  violated.  Let  us  inquire 
whether  Sabbath  laws  do  either  of  these  things.  The  answer  is 
given  in  the  opinions  of  our  courts.  "The  Sunday  law  was  not 
intended  to  compel  people  to  go  to  church,  or  to  perform  any 
religious  act,  as  an  expression  of  preference  for  any  particular 
•creed  or  sect."  (State  v.  Ambs,  20  Mo.  214.)  "These  laws  do 
not  prohibit  or  interfere  with  the  worship  of  God  on  any  other 
day  than  Sunday,  nor  do  they  compel  any  one  to  worship  on 
'Sunday."      (Judefind  v    State,  78  Md.  510.) 

Sometimes  the  plea  is  advanced  that  legislators  are 
■prompted  by  religious  motives  in  the  enactment  of  these  laws 
and  that  this  is  an  unwarranted  mingling  of  things  civil  and  re- 
ligious, and  that  on  account  of  these  motives  such  laws  invade 


♦Among  the  opinions  of  Courts  declaring  that  there  is  no  invasion  of  rights  and 
consequently  no  infraction  of  the  Constitution  by  our  Sabbath  laws,  the  folowing 
are  of  more  fhan  ordinary  merit:  Shover  v.  State,  10  Ark.,  259,  1850;  Scales  v. 
The  State,  47  Ark.,  476,  1S86;  Gunn  v.  The  State,  89  Ga.,  341,  1892; 
Johns  V.  The  State.  78  Ind.,  332,  1870;  Kilgour  v.  Miles  and  Gold- 
smith, 6  G.  &  J.  (Md.),  268,  1834;  Judefind  v.  State,  78  Md.,  510,  1894; 
Allen  V.   Deming,  14  N.   H.,   133,  1843;     Specht  v.   Commonwealth,   8  Pa.,    312,     1848; 

■Commonwealth  v.  Nesbit,  34  Pa.,  398,  1859;  Frolickstein  v.  Mayor  of  Mobile,  40 
Ala.,  725,  1867;  Commonwealth  v.  Has,  122  Mass.,  40,  1877;  Lindenmuller  v.  The 
People,  33  Barb.,  584,  (N  .Y.),  1861;  City  Council  of  Charleston  v.  Benjamin,  2 
Strobhart,  508  (S.  C),  1846;  Gabel  v.  Houston,  29  Texas,  335,  1S67;  Albrecht  v. 
The  State,  8  Texas,  313,  18S0;    Adams  v.   Gray,  19  Vt.,  358,  1847;    The  State  v.   B.   & 

■0.  R.  R.  Co.,  15  W.  Va.,  362,  1879;  State  v.  Ambs,  20  Mo.,  214,  1854;  State  v.  Powell, 
58  O.   R.   324,  1898;   Richmond  v.   Moore,  107  111.,   429,  1883;     State    ex  rel.   Walker  & 

-Mertz  V.  Judge,  39  La.,  132,  1887;   Ex  parte  Burke,  59  Cal.,   6,  1881. 


SABBATH  LA  WS  PROTECT  HUMAN  RIGHTS.  203 

the  freedom  of  those  who  do  not  believe  in  them.  It  may  be 
readily  conceded  that  such  motives  exist.  No  such  institution 
as  the  Sabbath  could  exist  apart  from  religion.  Sabbath  laws 
are  scarcely  conceivable  apart  from  religious  motives.  But  the 
motives  of  the  lawmakers  are  not  forced  upon  the  consciences  of 
those  who  are  required  to  obey.  Doubtless  there  are  many  laws 
against  vice  and  immorality  enacted  from  religious  motives.  But 
the  subjects  of  these  laws  are  still  left  free  as  to  conscience. 
What  the  law  demands  is  obedience.  It  does  not  aim  to  impose 
•motives  upon  men's  minds.  It  is  a  weak  cause  that  pleads  the 
religious  liberty  clauses  of  our  constitutions  as  a  defense  of 
worldly  labor,  business  and  amusement  on  the  Sabbath.  The 
'Consciences  of  Sabbath  breakers  may  not  approve  of  Sabbath 
laws,  but  it  is  not  conscience  that  urges  men  to  engage  in  labor 
and  trade,  or  to  attend  theaters,  horse  races  and  athletic  sports 
•on  the  Lord's  day.  Neither  is  any  one  harassed  with  compunc- 
tions of  conscience  or  feelings  of  remorse  if  he  fails  through 
compulsion  or  otherwise  to  do  these  things.  No  one  is  com- 
pelled by  the  Sabbath  law  to  do  what  he  does  not  approve.  He 
is  only  restrained  from  doing  some  things  which  he  does  approve 
and  the  State  does  not.  There  are  still  many  other  things  in 
perfect  accord  with  his  secular  views  which  the  law  does  not  for- 
bid. He  may  spend  the  day  in  reading  infidel  works  or  works 
•wholly  lacking  in  the  religious  clement ;  he  may  attend  infidel  lec- 
tures; he  may  do  scores  of  things  that  are  not  religious,  and  the 
iaw  is  silent.  All  that  it  demands  is  a  measure  of  outward  re- 
spect for  an  institution  that  holds  a  prominent  place  in  the  minds 
of  the  great  body  of  the  people. 

To  regard  such  a  la\V  as,  an  invasion  of  the  religious 
rights  and  liberty  of  those  who  have  little  or  no  religion  requires 
.an  unwarranted  stretch  of  the  meaning  of  terms. 

SECOND  GROUND — SABBATH    LAWS  PROTECT   HUMAN  RIGHTS. 

Having  shown  that  these  laws  are  not  in  conflict  with  the 
•constitutional   provisions   that   safeguard   religious   liberty,   it   is 


204  SABBA TH  LA  WS  PROTECT  HUMAN  RIGHTS. 

in  order  to  show  you  that  they  are  necessary  for  the  preservation 
of  certain  rights.'" 

Civil  government  is  the  institution  of  rights.  One  chief  ob- 
ject of  its  existence  is  to  protect  the  rights  of  all  classes. 

It  is  generally  conceded  in  Christian  lands  that  all  men  have 
the  right  to  rest  one  day  in  every  week.  Even  in  the  State  of 
California  which  has  had  no  real  Sabbath  law  since  1883,  a  rest 
day  law  has  recently  been  enacted  designed  to  guarantee  to  all 
one  day's  rest  out  of  every  seven  without  specifying  any  one  day,, 
but  allowing  this  to  be  determined  by  circumstances.  Cessa- 
tion from  labor  one  day  in  the  week  is  a  right  to  be  protected 
by  law.  The  plea  has  been  made,  however,  that  we  do  not  need 
a  law  telling  us  when  to  rest  or  protecting  us  in  the  enjoyment 
of  the  right.  It  is  said  that  those  who  feel  the  need  of  rest  wilt 
take  it  without  such  a  law.  Whatever  measure  of  truth  there 
may  be  in  this  with  respect  to  people  who  are  able  to  control 
their  own  time,  it  is  not  true  with  respect  to  the  vast  army  ot  em- 
ployees who  are  dependent  upon  capitalists  for  employment. 
Multitudes  of  employees  in  mills  and  factories,  on  railroad  trains 
and  street  cars,  and  also  in  the  mail  service  of  the  United  States, 
under  existing  laws,  are  deprived  of  their  Sabbath  rest,  not  be- 
cause they  prefer  to  labor  seven  days  in  the  week,  but  because 
they  must,  or  give  up  their  positions.  The  Supreme  Court  of 
Minnesota  stated  the  situation  with  precision  when  it  declared 
that  "labor  is  in  a  great  degree  dependent  upon  capital,  and  un- 
less the  exercise  of  power  which  capital  affords  is  restrained, 
those  who  are  obliged  to  labor  will  not  possess  the  freedom  for 
rest  which  they  Avould  otherwise  e?$ercise." 

If  the  vast  multitudes  of  our  population  popularly  styled  the 
laboring  classes  were  fully  aroused  to  their  own  interests  they 
would  prescribe  as  one  of  the  conditions  of  their  employment  one 
day  for  rest  in  every  seven,  except  in  cases  of  necessity.     This 


*  Among  the  opinions  of  Courts  maintaining  this  position  the  folowing  may  be 
studied  with  proflt:  State  v.  Miller,  68  Conn.,  373,  1896;  George  v.  George,  47  N.  H., 
27,  1866;  Johnston  v.  Commonwealth,  22  Pa.,  102,  1853;  Sparhawk  v.  Union  Passen- 
ger Railway  Co.,  54  Pa.,  401,  1867;  State  v.  Petit,  74  Minn.,  376,  1898;  Stae  v.  Wil- 
liams, 1  Vroom  (N.  J.),  1862;  Lindenmuller  v.  The  People,  33  Barb.  548,  1861;  The 
State  V.  B.  &  O.  R.  R.  Co. ,15  W.  Va.,  362,  1879;  Ray  v.  Callett  and  Buek,  12  B.  M., 
582  (Ky.),  1851  Stae  v.  Ambs,  20  Mo.,  214,  1854;  The  State  v.  O'Rourke,  35  Neb., 
614,  1892. 


SABBATH  LA  WS  PROTECT  HUMAN  RIGHTS.  205 

•should  be  one  of  the  demands  made  by  all  labor  organizations. 
They  should  appeal  to  the  law  to  protect  them  in  this  right. 
But  while  these  organizations  make  many  demands,  and  while 
laborers  have  inaugurated  strikes  to  enforce  these  demands, 
in  all  the  annals  of  these  proceedings  as  prepared  by  the  Com- 
missioner of  Labor,  there  have  been  only  two  or  three  strikes 
because  of  Sunday  labor. 

But  capitalists  themselves  are  not  always  independent  in 
this  matter.  The  owners  of  mills  and  factories,  the  proprietors 
of  barber  shops  as  well  as  those  engaged  in  certain  mercantile 
pursuits,  often  feel  compelled  by  circumstances  to  carry  on  their 
different  enterprises  on  the  Lord's  day  unless  all  who  are  en- 
-gaged  in  the  same  calling  are  constrained  by  law  to  desist.  In 
the  Minnesota  Supreme  Court  opinion  just  quoted  there  is  a  par- 
agraph that  covers  such  cases.  The  Court  said,  "If  the  law  was 
not  obligatory  upon  all,  and  those  who  desire  to  do  so  were 
permitted  to  engage  in  their  usual  vocations  on  Sunday,  others 
engaged  in  the  same  kind  of  labor,  might,  against  their  wishes, 
be  compelled  by  the  laws  of  competition  in  business  to  do  like- 
wise." 

But  there  are  other  rights  than  the  mere  right  to  rest  from 
secular  labor  protected  by  Sabbath  laws.  There  is  the  right  to 
worship  God  without  disturbance.  Our  rights  of  conscience 
are  only  partially  secured  by  a  law  that  protects  us  in  the  right 
to  rest  if  the  quietness  of  the  day  is  not  protected  so  as  to  make 
worship  possible  by  laying  the  restraining  hand  of  law  upon  all 
secular  employments.  On  this  point  the  Supreme  Court  of 
Pennsylvania,  in  Johnston  v.  Commonwealth,  has  said,  *Tt  would 
he  a  small  boon  to  the  people  of  Pennsylvania  to  declare  their  in- 
defeasible right  to  worship  God  according  to  the  dictates  of  their 
■own  consciences  amid  the  din  and  confusion  of  secular  employ- 
ments, and  with  desecrations  on  every  hand  of  what  they  consci- 
entiously believe  to  be  hallowed  time."  Of  like  import  is  the 
language  of  the  Supreme  Court  of  Missouri  in  The  State  v. 
Ambs,  when  in  speaking  of  the  motives  of  those  who  adopted 
the  Sabbath  law  it  was  said,  "They  deemed  a  statute  compelling 
the  observance  of  Sunday  necessary  to  secure  a  full  enjoyment  of 
the  rights  of  conscience.  How  could  those  who  conscientiously 
believed  that  Sunday  is  hallowed  time,  to  be  devoted  to  the  wor- 


2o5  AS  POLICE  REG  ULA TIONS. 

ship  of  God,  enjoy  themselves  in  its  observance  amidst  scenes- 
by  which  the  day  was  desecrated  which  they  conscientiously  be- 
lieved to  be  holy?" 

THIRD  GROUND AS  POLICE  REGULATIONS,  SABBATH   LAWS 

PROTECT  THE  PUBLIC   WET.FARE. 

The  boundary  line  between  the  police  power  and  some  other 
powers  of  the  State  has  never  been  definitely  drawn.  It  has  been 
drawn  with  sufficient  precision,  however,  for  our  present  purpose. 
It  is  conceded  by  all  writers  on  the  subject  that  the  police  power 
includes  the  power  and  the  right  to  protect  the  public  health, 
the  public  safety  and  order,  and  the  public  morals. 

With  few  exceptions  our  State  courts  have  been  called  upon 
to  decide  whether  or  not  the  Sabbath  law  is  constitutional. 
With  scarcely  an  exception  the  law  has  been  sustained  as  a  police 
regulation.* 

But  what  is  involved  in  these  numerous  opinions?  Far 
more  than  appears  from  a  mere  casual  perusal  of  them.  Some 
of  them  betray  a  studied  efifort  to  conceal  certain  facts.  For 
example,  frequent  use  is  made  of  the  expression  "mere  police 
regulation,"  or  other  expressions  of  like  import,  as  though  such 
regulations  do  not  possess  the  dignity  and  importance  of  laws 
relating  to  the  tarifif,  the  coinage  of  silver  or  the  building  of  bat- 
tleships. But  police  regulations  are  for  the  public  welfare,  and 
the  first  item  is  the  public  health.  Frequently  the  courts  tell  us 
that  mankind  has  learned  by  experience  that  cessation  from  la- 


*  The  following  list  of  cases  is  of  value  in  the  study  of  this  ground: 
State  V.  Miller,  68  Conn.,  373,  1896;  Hall  v.  The  State,  4  Del.,  132,  1844;  Neal  at 
al.  V.  Crew,  12  Ga.,  93,  1852;  Salter  et  al.  v.  Smith,  55  Ga.,  244,  1875;  Hennington  v. 
The  state,  90  Ga.,  396,  1892;  Specht  v.  Commonwealth,  8  Pa.,  312,  1848;  Colton  v. 
Huey  &  Co.,  4  Ala.,  56,  1842;  O'Donnell  et  als.  v.  Sweny,  5  Ala.,  467,  1843;  People 
V.  Belet,  99  Mich.,  151,  1893;  Scougale  v.  Sweet,  124  Mich.,  .311,  1900;  State  v.  Petit, 
74  Minn.,  376,  1898;  Lindenmuller  v.  The  People  ,33  Barb.,  584,  1861;  City  Council 
of  Charleston  v.  Benjamin,  2  Strobhart  (S.  C),  508,  1846;  Norfolk  &  Western  R.  R. 
Co.  V.  Commonwealth,  88  Va.,  95,  1892;  N.  &  W.  R.  R.  Co.  v.  Commonwealth,  93 
Va.,  749,  1896;  The  State  v.  B.  &  O.  R.  R.  Co.,  15  W.  Va.,  362,  1879;Bloom  v.  Rich- 
ards, 2  Ohio,  387,  1853;  McGatrich  v.  Wason,  4  O.  S.,  566,  1855;  Mayor  of  Nash- 
vile  V.  Linch,  12  Lee  (Tenn.),  499,  1883;  Heinssen  V.  State,  4  Coi.,  228,  1890;  Scan- 
non  V.  The  City  of    Chicago,    40  111.,    146,  ;  State    ex  rel.    Walker    &  Mertz    v. 

Judge,  39  La.,  132,  1887;  Ex  Parte  Andrews,  18  Cal.,  679,  1861;  Soon  Hing  v.  Crowly, 
113  U.  S.,  703,  1884;  Swan  v.  Swan,  21  Fed.-Rep.,  299,  1884; 


AS  POLICE  REG  ULA  TIONS.  207 

bor  one  day  in  seven  is  necessary  for  the  preservation  of  health. 
But  the  truth  is  that  civiHzed  nations  were  resting  one  day  in 
seven  before  they  thought  of  inquiring  into  the  effects  of  the 
custom  on  health.  It  is  true,  however,  tliat  scientific  investiga- 
tions in  recent  years  prove  that  the  custom  is  absoKitely  neces- 
sary to  the  pubHc  health,  and  thus  science  confirms  divine  wis- 
dom from  a  sanitary  point  of  view. 

The  public  safety  is  the  next  thing  involved  in  the  police 
power.  The  opinions  of  Courts  touching  this  matter  plainly  de- 
clare that  the  safety  and  order  of  the  public  are  placed  in  jeop- 
ardy by  allowing  on  the  Sabbath  some  things  that  are  legal  on 
other  days.  By  general  consent  things  that  are  in  themselves 
immoral,  such  as  gambling,  drunkenness,  fighting,  etc.,  are  con- 
sidered worse  and  more  injurious  to  the  public  welfare  if  in- 
dulged in  on  Sabbath  than  on  other  days.  Hence  there  are 
special  laws  in  many  States  forbidding  all  such  things  on  the 
Sabbath.  But  what  makes  the  difiference?  It  must  be  some- 
thing about  the  day.  The  State  recognizes  its  own  need  of  mor- 
ality and  the  utility  of  the  Sabbath  in  cultivating  it.  While  the 
police  power  of  the  State  does  not  include  the  power  to  drive 
men  to  church,  the  State  recognizes  the  fact  that  those  who  will 
not  go  and  get  the  benefits  there  obtainable,  shall  do  as  little 
harm  as  possible  by  carrying  on  operations  in  conflict  with,  and 
rivals  of,  the  religious  services  of  the  church. 

This  leads  to  the  consideration  of  the  public  morals,  v^rhich 
is  the  next  thing  involved  in  the  police  power.  To  get  this  mat- 
ter clearly  before  the  mind  a  few  expressions  from  the  opinions 
of  courts  will  prove  helpful.  In  his  defense  of  the  Sabbath  law 
of  New  York  Judge  Allen,  in  delivering  the  opinion  of  the  Su- 
preme Court  in  the  case  of  Lindenmuller  v.  The  People,  de- 
clared that  Christianity,  as  the  religion  of  the  people  of  the  State, 
and  as  furnishing  the  best  sanctions  of  moral  and  social  obliga- 
tions, is  entitled  to  protection.  He  declared  further  that  the 
public  peace  and  welfare  are  greatly  dependent  upon  this  protec- 
tion, and  that  the  Sabbath  is  one  of  the  institutions  to  which  it 
should  be  extended.  The  Supreme  Court  of  Ohio  in  1898,  in 
the  State  v.  Powell,  in  upholding  the  Sabbath  law,  declared  that 
if  there  were  no  such  regularly  recurring  periods  of  rest,  there  is 


.2o8  THE  SABBATH  AS  A  CIVIL  INSTITUTION. 

reason  to  believe  that  the  masses  would  become  morbid  in  mind, 
crime  would  multiply  and  -degeneracy  likely  ensue. 

F'OURTH    GROUND THE    SABBATH    AS    A    CIVIL   INSTITUTION    IS 

ENTITLED   TO    PROTECTION. 

The  significance  of  the  proposition  that  the  Sabbath  is  a 
civil  institution  should  be  difinitely  fixed.  One  of  the  principal 
objections  to  all  Sabbath  laws  assumes  that  it  is  wholly  an  ec- 
clesiastical institution,  like  baptism  and  the  Lord's  Supper,  and 
that  laws  for  its  protection  constitute  a  mingling  of  the  afifairs 
of  Church  and  State.  But  Christians  should  be  protected  in 
their  right  to  observe  baptism  and  the  Lord's  Supper  and  other 
religious  ordinances.  In  the  very  nature  of  the  case,  however, 
such  ordinances  can  never  become  civil  institutions  where 
Church  and  State  are  not  united.  It  is  different  in  the  case  of 
the  Sabbath.  The  term  "Sabbath"  denotes  primarily  not  a  day 
"but  an  institution.  It  means  "rest"  or  "cessation."  The  insti- 
tution of  the  Sabbath  is  the  institution  of  rest  or  cessation.  To 
say  that  this  is  a  civil  and  political  institution  means  that  the 
rest  or  cessation  is  to  take  place  in  the  civil  and  political  life.  It 
is  not  in  the  esslesiastical  sphere  that  activity  ceases  on  that  day. 
Christians  are  not  supposed  to  take  a  rest  from  religious  activity 
one  day  in  seven,  and  that  on  the  Lord's  day.  It  is  on  the  Sab- 
bath that  we  look  for  the  greatest  measure  of  activity  in  the 
church.  It  is  especially  in  the  civil  and  political  spheres  that  the 
rest  or  cessation  is  to  be  looked  for.  We  are  to  rest  or  cease 
from  activity  in  the  civil  and  political  spheres  so  as  to  make  ac- 
tivity possible  in  the  ecclesiastical  sphere.  It  is  largely  the  same 
people  who  are  found  in  both  and  cessation  from  activity  in  the 
one  is  essential  to  activity  in  the  other. 

It  is  of  necessity  that  the  Sabbath  becomes  a  civil  and  po- 
litical institution  in  all  lands  where  Christianity  becomes  the 
prevalent  religion.  One  of  three  supposable  results  will  follow 
the  Christianizing  of  a  people,  (i)  They  may  wholly  separate 
themselves  from  civil  and  political  life  so  as  to  live  in  the  con- 
sistent observance  of  Christian  institutions.  (2)  They  may 
continue  in  all  civil  and  political  relations,  living  in  vio- 
lation   of    Christian    laws    and    usages    where    there    is    con- 


THE  SABBATH  AS  A  CIVIL  IXSTITUT/ON.  209 

■flict.  (3)  They  may  conform  the  usages  of  civil  and  politi- 
cal life  to  the  Christian  standard.  The  first  is  possible  only  to 
a  limited  degree.  Even  if  it  were  vi^holly  possible  it  should  be 
regarded  as  only  a  temporary  expedient  to  maintain  consistency 
and  to  secure  reformation.  The  second  is  wholly  inconsistent 
with  Christianity  and  will  be  repudiated  by  all  right-minded  peo- 
ple, however  common  it  may  be  in  practical  life.  The  third  is 
the  end  to  be  aimed  at,  however  necessary  it  may  be  at  any  time 
to  adopt  the  first,  and  however  popular  it  may  be  to  practice  the 
second. 

The  Sabbath  is,  therefore,  a  Christian  institution  which  of 
necessity  becomes  a  civil  institution  in  so  far  as  it  requires  ces- 
sation one  day  in  seven  from  worldly  employments  and  recre- 

^ations.* 

A  few  sentences  from  some  of  the  opinions  will  add  force 
to  the  argument.  Judge  Allen,  in  giving  the  opinion  of  the  Su- 
preme Court  of  New  York  in  the  Lindenmuller  case,  said,  "The 
Christian  Sabbath  is  one  of  the  civil  institutions  of  the  State,  and 
to  which  the  business  and  duties  of  life  are,  by  the  common  law, 
made  to  conform  and  adapt  themselves.  The  same  cannot  be 
said  of  the  Jewish  Sabbath  or  the  day  observed  by  the  follow- 
ers of  any  other  religion The  existence  of  the  Sabbath  day 

^as  a  civil  institution  being  conceded,  as  it  must  be,  the  right  of 
the  legislature  to  control  and  regulate  it  and  its  observance  is  a 
necessary  sequence." 

The  Supreme  Court  of  Minnesota,  in  1875,  '"  State  v.  Lud- 
wig,  declares  that  "All  the  authorities  concur  that  the  legislature 
may  by  law  establish,  as  a  civil  institution,  the  first  day  of  the 
week  as  a  day  of  rest,  and  may  prohibit  upon  it,  the  performance 


*  The  Courts  are  unanimous  in  this  judgment  as  will  appear  from  the  folowlng 
list  of  cases:  Shover  v.  State,  10  Ark.,  239,  1830;  Karvisch  vs.  Tile  Mayor  and  Coun- 
cil of  Atlanta,  44  Ga.,  205,  1871;  Hennington  v.  The  State,  90  Ga.,  396,  1892;  Specht 
T.  Commonwealth,  8  Pa.,  312,  1848;  Sparhawk  v.  Union  Passenger  Railway  Co.,  54 
Pa.,  401,  1867;  Slate  v.  Sopher,  25  Utah,  318  1902;  Commonwealth  v.  Has,  122  Mass., 
40,  1877;  State  v.  Ludwig,  21  Minn.,  202,  1875;  The  People  v.  Ruggles  &  Johnston, 
290  (N.  Y.),  1811;  Lindenmuler  v.  The  People,  33  Barb.,  584,  1861;  State  v.  Wil- 
liams, 4  Iredell  (N.  C),  400,  1844;  City  Council  of  Charleston  v.  Benjamin,  2  Strob- 
hart,  508  (S.  C),  1846;  Gabel  v.  Houston,  29  Texas,  335,  1867;  N.  &  W.  R.  R.  Co.  v. 
Commonwealth,  93  Va.,  749,  1896;  State  v.  Powell,  58  0.  R.  (Ohio),  324,  1898;  Breyer 
V.  The  State,  18  Piek,  103  (Tenn.),  1899;  Richmond  v.  Moore,  107  111.,  429,  1883;  The 
State  V.  O'Rourke,  35  Neb.,  614,  1892. 


2TO  THE  SABBATH  AS  A  CIVIL  INSTITUTION. 

of  any  manner  of  labor,  business  or  work,  except  only  works  of 
necessity  and  charity." 

The  facts  here  considered  settle  the  question  whether  or  not 
Christianity  is  part  of  the  common  law.  While  there  have  been 
a  few  negative  opinions  rendered  by  our  courts  on  this  question, 
nearly  all  the  opinions  are  in  the  afifirmative.  As  explanatory  of 
this  statement  and  of  the  kindred  statement  that  the  Sabbath  is  a 
civil  institution  the  following  from  an  opinion  by  the  United 
States  Circuit  Court  of  the  Western  District  of  Tennessee  is  un- 
excelled. 

"The  religion  of  Jesus  Christ  is  so  interwoven  with  the  tex- 
ture of  our  civilization,  and  every  one  of  its  institutions,  that  it 
is  impossible  for  any  man,  or  set  of  men,  to  live  among  us  and 
find  exemption  from  its  influences  and  restraints.  Sunday  ob- 
servance is  so  essentially  a  part  of  that  religion  that  it  is  im- 
possible to  rid  our  laws  of  it,  quite  as  impossible  as  to  abolish  the 
custom  we  have  of  using  the  English  language,  or  clothing  our- 
selves with  the  garments  appropriate  to  our  sex There  is 

scarcely  any  man  who  has  not  had  to  yield  something  to  the  law 
of  the  majority  which  is  itself  a  universal  law,  from  which  we 

cannot  escape  in  the  name  of  equal  rights  or  civil  liberty 

The  fact  that  religious  belief  is  one  of  the  foundations  of  the 
custom  is  no  objection  to  it,  as  long  as  the  individual  is  not  com- 
pelled to  observe  the  religious  ceremonies  others  choose  to  ob- 
serve in  connection  with  their  rest  days Not  one  of  our  laws 

or  institutions  or  customs  is  free  from  the  influence  of  our  relig- 
ion, and  that  religion  has  put  our  race  and  people  in  the  very 
front  of  all  nations  in  everything  that  makes  the  human  race 
comfortable  and  useful  in  the  world.  This  very  principle  of  re- 
ligious freedom  is  the  product  of  our  religion,  as  all  our  good 
customs  are."     (In  Re  King,  46  Federal  Reports,  905,   1891.) 

This  argument  would  not  be  complete  without  an  extract 
from  the  opinion  of  the  Supreme  Court  of  the  United  States  in 
the  famous  case  of  the  Church  of  the  Holy  Trinity  v.  United 
States  .     This  Court  said : 

"No  purpose  of  action  against  religion  can  be  imputed  to 
any  legislation.  State  or  National,  because  this  is  a  religious  peo- 
ple.    This  is  historically  true.     From  the  discovery  of  this  con- 


SABBATH  LA  WS  REST  UPON  DIVINE  A  UTHORITY.         215 

tinent  to  the  present  hour,  there  is  a  single  voice  making  this  af- 
firmation." 

Quotations  are  then  given  at  length  from  the  commission 
given  to  Christopher  Columbus,  from  the  Charters  of  the  Colo- 
nies, from  the  Declaration  of  Independence  and  from  other  docu- 
ments. These  are  followed  by  extracts  from  the  opinions  al- 
ready given  declaring  that  Christianity  is  part  of  the  common 
law  of  the  land.  The  Supreme  Court  of  the  United  States  lends 
its  sanction  to  this  proposition,  and  declares  that  "This  is  a 
Christian  Nation." 

The  Sabbath  occurring  on  tlie  first  day  of  the  week  is  a 
part  of  that  Christianity  which  is  part  of  the  Common  law.  This 
is  not  theory  but  fact.  It  is  not  made  a  fact  by  any  process  of 
legislation,  but  legislation  favoring  the  Sabbath  grows  out  of  the 
fact.  It  has  developed  with  the  growth  and  development  of  the 
nation  itself.  It  is  an  element  in  the  vital  constitution  of  the  na- 
tion. Christianity  without  a  Sabbath  is  not  Christianity.  A 
Christian  nation  without  the  civil  institution  of  the  Sabbath  is 
not  a  Christian  nation.  The  only  way  to  remove  the  Sabbath 
from  civil  life  and  law  is  to  to  eliminate  Christianity  from  the 
lives  of  the  people. 

FIFTH  GROUND LAWS  FOR  THE  PROTECTION  OF  THE  SABBATH 

AS  A  CIVIE  INSTITUTION  REST  UPON  DIVINE  AUTHORITY. 

As  this  feature  of  the  question  is  too  often  ignored  it  is  im- 
portant that  it  be  here  presented  with  considerable  fullness. 

While  there  is  no  direct  and  explicit  acknowledgment  of  di- 
vine authority  in  our  Sabbath  laws  themselves,  the  fact  that 
thirty-one  of  them  use  the  terms  Sabbath  and  Lord's  day  is  to 
be  regarded  as  containing  an  implied  recognition  of  sucli  au- 
throity,  while  the  non-use  of  these  terms  is  not  a  denial  of  it. 

In  the  opinions  of  our  courts,  however,  the  divine  authority 
on  which  the  law  rests  is  frequently  recognized.  Extracts  from 
these  opinions  will  be  given  in  chronological  order. 

In  181 1,  in  The  People  against  Ruggles,  the  Supreme  Court 
of  New  York  declared  that  "Christianity,  in  its  enlarged  sense^ 
as  a  religion  revealed  and  taught  in  the  Bible,  is  not  unknown 
to  our  law.     The  statute  for  preventing  immorality  consecrates 


212  SABBATH  LA  WS  REST  UPON  DIVINE  A  UTHORIIY. 

the  first  day  of  the  week,  as  holy  time,  and  considers  the  viola- 
tion of  it  immoral."     (8  Johnston  290.) 

"  Ringgold  in  his  work  on  "Sunday  Laws,'"  flippantly  speaks 
of  the  legislature  of  New  York  as  claiming  the  power  to  make 
a  day  holy,  and  quotes  this  opinion  in  proof  of  his  statement. 
But  this  is  not  a  correct  interpretation  of  the  language  used.  If 
it  were  it  would  be  no  recognition  of  divine  authority,  but  rather 
an  assumption  of  a  divine  prerogative.  A  reference  to  the  New 
York  Statutes  will  show  that  the  Legislature  speaks  of  the  Sab- 
bath as  holy  time  in  the  minds  of  Christians  without  any  legisla- 
tive act.  (Section  264.)  What  the  Legislature  did  was  to  rec- 
ognize its  holy  character  and  to  protect  it  as  such,  which  involves 
a  recognition  of  Him  who  alone  can  make  a  day  holy. 

In  1846,  in  City  Council  of  Charleston  v.  Benjamin,  the  Su- 
preme Court  of  South  Carolina  used  the  following  words :  "The 
Lord's  day,  the  day  of  the  Resurrection,  is  to  us  who  are  called 
Christians,  the  day  of  rest  after  fininshing  a  new  creation.  It 
is  the  day  of  the  first  visible  triumph  over  death,  hell  and  the 
grave.  It  was  the  birthday  of  the  believer  in  Christ,  to  whom 
and  through  whom  it  opened  up  the  way  which,  by  repentance 
and  faith,  leads  unto  everlasting  life  and  eternal  happiness.  On 
that  day  we  rest,  and  to  us  it  is  the  Sabbath  of  the  Lord — its  de- 
cent observance  in  a  Christian  community  is  that  which  is  to  be 
expected."     (2  Strobhart,  508.) 

With  wonderful  lucidity  and  power  the  court  proceeded  to 
•maintain  the  proposition  that  Christianity  is  part  of  the  common 
law,  that  its  moral  principles  permeate  our  social  life  and  influ- 
ence our  legislation,  and  that  its  moral  laws  may  be  appealed  to 
as  authorative  in  civil  afifairs. 

The  Supreme  Court  of  North  Carolina  used  the  following 
language  in  1844,  in  The  .Stale  v.  Williams.  Work  on  the  Sab- 
bath "ofifends  us  not  so  much  because  it  disturbs  us  in  practicing 
for  ourselves  the  religious  duties,  or  enjoying  the  salutary  re- 
pose, or  recreation  of  the  day,  as  that  it  is  in  itself,  a  breach  of 
God's  law  and  a  violation  of  the  party's  own  religious  duty." 
(4  Iredell  400.) 

The  Supreme  Court  of  Iowa,  in  1S48,  in  Davis  v.  Fish,  said 
concerning  the  Sabbath  that  "It  has  been  established  by  laws 
both  human  and  divine,  for  public  worship  and  private  devotion 


SABBATH  LA  WS  REST  I'PON  DIVINE  A  UTHORITY.        21  j 

— a  time-honored  and  heaven-appointed  institution."     (i   Green 
406.) 

In  Neal  and  others  v.  Crew,  the  Supreme  Court  of  Geor- 
gia, in  1852,  expressed  disapprobation  of  municipal  arrange- 
ments "which  overlook  and  disregard  the  moral  law  of  the  Great 
Jehovah,  who  from  the  smoking  top  of  Mount  Sinai  proclaimed 
to  all  the  world,  'Remember  the  Sabbath  day  to  keep  it  holy; 
in  it  thou  shalt  not  do  any  work.'  "     (12  Ga.  93.) 

In  his  "Constitutional  Limitations,"  Judge  Cooley  says  that 
"the  Supreme  Court  of  Pennsylvania  have  preferred  to  defend 
Sabbath  laws"  on  the  ground  simply  that  they  are  "sanitary  reg- 
ulations, based  upon  the  demonstration  of  experience  that  one 
day's  rest  in  seven  is  needful  to  recuperate  the  exhausted  ener- 
gies of  body  and  mind."  (pp.  589,  590.)  He  seems  to  have 
overlooked  the  opinion  in  Johnston  v.  Commonwealth,  in  which 
the  following  occurs :  "It  m.ay  not  be  essential,  but  it  is  far  from: 
irrelevant,  to  the  decision  of  the  present  case,  to  sustain  the  di- 
vine authority  of  its  institution."  The  court  declares  the  day  to- 
be  "set  apart  by  divine  command  and  human  legislation  as  a  day 
of  rest.  We  have  no  right  to  give  up  this  institution.  It  has- 
come  down  to  us  with  the  most  solemn  sanctions,  both  of  God: 
and  man."     (22  Pa.  192,  1853.) 

In  the  same  year,  in  Omit  v.  Commonwealth,  the  same 
Court  said,  "Rest  one  day  in  seven  was  enjoined  by  the  precept 
and  example  of  the  Author  of  our  existence,  and  government, 
founding  itself  on  divine  appointment,  has  made  it  a  civil  in- 
stitution."    (21  Pa.  426.) 

In  Stockton  v.  The  State  the  Supreme  Court  of  Arkansas 
declared  that  the  object  of  the  Sabbath  law  is  "to  prohibit  the 
desecration  of  the  Sabbath wliich  i.s  set  apart  by  divine  ap- 
pointment as  well  as  bv  the  law  of  the  land."  fi8  Ark,  186, 
1856.) 

In  1859,  in  Campbell  v.  The  International  Life  Assurance 
Society  of  London,  the  Supreme  Court  of  New  York  called  at- 
tention to  the  fact  that  the  statute  "explicitly  recognizes  the  first 
day  of  the  week  as  holy  time."  The  court  then  gave  an  argu- 
ment to  prove  that  the  Jewish  Sabbath  has  been  abolished  and 
has  been  superseded  by  the  Lord's  day.  The  essential  points 
in  the  argument  are  these  :       The  Scripture  passages  foimd  in 


214         SABBATH  LAWS  REST  UPON  DIVINE  A UTHOBITY. 

Matthew  28:1;  Mark  16:2;  Luke  24:1;  and  John  21,  together 
with  the  expression  "the  Lord's  day,"  in  Revelation  1:10;  the 
practice  of  the  Christians  of  assembling  on  the  first  day  of  the 
week,  as  mentioned  in  I  Corinthians  16 :2,  and  the  usages  of 
Christians. traced  back  to  remote  antiquity  "constitute  an  argu- 
ment of  irresistible  force  to  prove  that  the  Jewish  Sabbath  was 
superseded,  that  the  day  of  the  resurrection  was  substituted,  and 
that  the  great  injunction  of  the  ancient  law  to  keep  it  holy,  was 
applicable  to  this  new  day  of  a  greater  deliverance."  (4  Bos- 
worth  998.) 

In  i860  the  New  York  Superior  Court  in  a  case  already 
quoted  said,  "The  learned  counsel  of  the  plaintiffs  has  entered 
largely  into  the  question  of  the  origin  and  sanction  of  the  Chris- 
tian Sabbath.  It  may  not  be  essential  but  it  is  far  from  being 
irrelevant,  to  the  decision  of  the  present  case,  to  sustain  the 
divine  authority  of  the  institution."  (20  Howard's  Practice 
Reports,  76.) 

In  Karwisch  v.  The  Mayor  and  Council  of  Atlanta,  the  Su- 
preme Court  of  Georgia,  in  1871,  said,  "The  law  fixes  the  day 
recognized  as  the  Sabbath  day  all  over  Christendom,  and  that 
day,  by  divine  injunction,  is  to  be  kept  holy."     (44  Ga.  204.) 

In  Waldon  et  al  v.  Colquitt,  Governor,  the  same  court,  in 
1879,  called  attention  to  the  fact  that  the  Code  denominates  the 
first  day  of  the  week  "the  Lord's  day,  and  as  the  Lord's  day  all 
■courts  and  magistrates  are  to  consider  it."     (62  Ga.  449.) 

The  Missouri  Court  of  Appeals  in  the  case  of  the  City  of 
St.  Joseph  V.  Elliott,  declared  that  they  would  not  decide  whether 
the  law  is  constitutional  as  prescribing  a  religious  duty  to  God, 
a  political  duty  to  the  State,  or  a  social  duty  to  our  fellow-men, 
or  all  three  combined.  The  Court  declared  that  Sabbath  laws 
have  been  upheld  on  each  of  these  grounds,  that  the  protection 
of  the  observance  of  religious  duties  was  one  part  of  their  object, 
and  that  the  moving  cause  of  their  enactment  was  obedience  to 
a  religious  sentiment.  It  was  maintained  further  by  this  Court 
that  the  defense  of  these  laws  for  other  reasons  than  those  based 
on  Christianity  is  an  afterthought  of  the  courts  and  were  not  the 
moving  cause  of  their  enactment.     (47  A.  418,  1891.) 

These  citations  may  be  brought  to  a  close  most  fittingly  by 
giving  President  Lincoln's  General  Order  issued  in  November, 


THE  CONSTITUTIONAL  SABBATH.  215 

1862,  for  the  better  observance  of  the  Sabbath  in  the  Army  and 
Navy.  It  is  as  follows:  "The  President,  Commander-in-Chief 
of  the  Army  and  Navy,  desires  and  enjoins  the  orderly  observ- 
ance of  the  Sabbath  by  the  officers  and  men  in  the  military  and 
naval  service.  The  importance  for  man  and  beast  of  the  pre- 
scribed weekly  rest,  the  sacred  rights  of  Christian  soldiers  and 
sailors,  a  becoming  deference  to  the  best  sentiment  of  a  Chris- 
tian people,  and  a  due  regard  for  the  Divine  will  demand  that 
Sunday  labor  in  the  Army  and  Navy  be  reduced  to  the  measure 
of  strict  necessity." 

In  1899,  President  McKinley,  in  General  Order  No.  50,  in- 
corporated this  order  of  President  Lincoln's.  Its  recognition  of 
the  Divine  will  in  the  matter  of  Sabbath  observance  is  deserving 
of  imitation  by  all  who  have  to  do  with  laws  touching  the  mat- 
ter in  question. 

THE  CONSTITUTIONAL  SARBATII. 

Many  of  the  opponents  of  the  Sabbath  seem  to  have  aban- 
doned at  least  temporarily  the  effort  to  secure  opinions  of  Courts 
against  the  constitutionality  of  Sabbath  laws.  Some  of  them 
even  declare  their  love  for  the  Sabbath  and  their  desire  that  it 
be  perpetuated  and  protected.  They  are  quite  assiduous,  how- 
ever, in  efforts  to  secure  new  legislation  enlarging  the  list  of  ex- 
ceptions to  the  application  of  the  law.  It  becomes  an  important 
matter  therefore  to  consider  what  kind  of  a  Sabbath  law  is  con- 
stitutional. 

Evidently  this  question  cannot  be  determined  wholly  by  an 
examination  of  written  constitutions,  State  and  National.  The 
provisions  of  these  documents  forbid  the  invasion  of  human 
rights,  but  they  contain  no  positive  injunctions  as  to  the  enact- 
ment of  Sabbath  laws.  In  the  absence  of  such  injunctions  we 
must  look  elsewhere  for  the  needed  information.  It  is  to  be 
found  by  a  careful  study  of  the  real  character  of  the  Sabbath  as 
a  civil  institution.  The  Sabbath  in  the  civil  and  political  life  of 
this  country  has  a  certain  well  defined  character.  A  constitu- 
tional Sabbath  law  is  one  that  adequately  protects  this  institu- 
tion. 

Our  Sabbath  differs  from  the  Sundav  of  Continental   Eu- 


2i6  A  CONSTITUTIONAL  DEFECT. 

rope,  Mexico  and  the  South  American  nations.  Our  Sabbath 
lasts  twenty-four  hours.  To  devote  the  afternoon  and  evening 
of  the  day  to  business,  or  pleasure,  is  in  conflict  with  the  spirit 
of  the  institution.  The  customs  that  have  been  growing  up  of 
late  years  in  many  of  our  cities  and  their  suburbs,  whereby  the 
greater  part  of  the  day  becomes  a  holiday  are  wholly  un-Ameri- 
can and  are  fraught  with  danger  to  our  civilization  and  our 
country. 

Some  of  the  modifications  introduced  in  some  States  in  re- 
cent years  whereby  the  selling  of  tobacco  and  various  kinds  of 
luxuries,  the  printing  and  selling  of  newspapers,  and  the  doing 
of  other  things  which  come  under  the  head  neither  of  charity  nor 
necessity,  are  violative  of  the  institution  as  it  exists  among  us, 
and  ought  to  be  considered  unconstitutional.  A  constitutional 
Sabbath  law  in  any  of  our  States  is  one  which,  in  general,  pro- 
tects all  the  people  in  their  right  to  rest  and  to  engage  in  public 
and  private  worship  if  they  so  desire. 

It  is  a  law  which  forbids,  in  general,  all  business  and  labor 
(works  of  necessity  and  charity  alone  excepted),  all  amusements 
and  public  sports,  all  hunting  and  fishing. 

There  is  considerable  diversity  among  our  Sabbath  laws  as 
to  the  legality  of  contracts  made  on  the  Sabbath.  In  general, 
marriage  contracts  and  contracts  relating  to  the  support  of  relig- 
ion, are  binding,  though  made  on  the  Sabbath.  In  a  few  States 
a  private  business  contract  is  binding.  Generally  such  contracts 
are  illegal  and  not  enforceable. 

A   CONSTITUTIONAL  DEFECT. 

When  our  courts  declare  Sabbath  laws  to  be  constitutional 
it  is  not  to  be  understood  that  there  are  positive  constitutional 
provisions  on  which  these  laws  rest  and  that  the  institution  has 
adequate  constitutional  protection.  All  that  is  meant  is  that 
these  laws  violate  no  provisions  of  the  written  constitution  and 
that  they  are  in  harmony  witli  the  unwritten  constitution.  The 
last  Sabbath  law  enacted  by  California  was  declared  by  the  Su- 
preme Court  of  the  State  to  be  constitutional.  When  the  legis- 
lature repealed  the  law  no  provision  of  the  written  constitution 
was  violated. 


A  CONSTITUTIONAL  DEFECT.  217 

Is  there  not  a  necessity  therefore  for  positive  provisions  in 
written  constitutions  making  it  mandatory  upon  legislative  bod- 
ies to  enact  Sabbath  laws  which  shall  afford  adequate  protection 
to  the  institution?  Should  not  such  constitutional  provisions 
contain  explicit  recognition  of  the  divine  authority  on  which  the 
Sabbath  rests?. 


CHAPTER   IX. 

THE  ULTIMATE  GROUND  OF  SABBATH  LAWS. 

With  one  exception  the  grounds  on  which  Sabbath  laws 
rest  have  been  amply  presented  and  sustained  by  the  courts. 
That  exception  is  the  Divine  authority  for  such  laws. 

With  one  exception  all  conceivable  objections  to  these  laws 
have  been  fully  answered  in  the  judicial  opinions  quoted.  That 
•exception  is  the  objection  which  assumes  that  the  separation  of 
Church  and  State  involves  the  separation  of  religion  and  the 
State,  and  the  consequent  banishment  from  the  sphere  of  the 
State's  action  of  all  questions  requiring  settlement  by  an  author- 
itative moral  standard. 

OPINIONS    BASED    ON    SECULARISM. 

In  some  instances  the  courts,  not  willing  to  maintain  the 
Divine  authority  for  Sabbath  laws,  and  yet  persuaded  that  these 
laws  must  be  sustained  as  constitutional,  have  announced  in  un- 
mistakable terms  the  secular  theory  of  civil  government,  and 
have  sought  constitutional  support  for  such  laws  in  the  mere  will 
of  the  people. 

The  will  of  the  people  may  be  sufficient  ground  for  a  law  es- 
tablishing a  holiday.  It  may  suffice  even  for  some  of  the  laws 
regarding  the  first  day  of  the  week  as  found  in  some  of  our  State 
Codes.  But  it  is  not  sufficient  ground  for  a  law  setting  apart  a 
day  as  a  day  of  rest. 

218 


OPINIONS  BASED  ON  SECULARISM.  219 

It  can  easily  be  shown  that  if  there  is  no  Divine  authority 
for  Sabbath  laws  each  of  the  other  grounds  is  worthless,  as  ap- 
pears from  the  following  considerations:  The  Declaration  of 
Independence  truthfully  states  that  "all  men  are  endowed  by 
their  Creator  with  certain  inalienable  rights;  that  among  these 
are  life,  liberty,  and  the  pursuit  of  happiness ;  that,  to  secure  these 
rights,  governments  are  instituted  among  men."  The  right  to 
engage  in  labor,  business  and  innocent  amusement  is  bestowed 
by  the  Creator  and  is  to  be  protected  by  the  government.  If  gov- 
ernment prohibits  these  pursuits  one  day  in  seven,  unless  it  has 
a  divine  warrant  so  to  do,  it  is  guilty  of  an  unjustifiable  invasion 
of  human  rights.  Thus  the  first  ground  on  which  Sabbath  laws 
are  sustained  is  shown  to  need  the  Divine  will  to  sustain  it. 

Moreover,  the  right  claimed  by  Christians  to  a  Sabbath  free 
from  the  turmoil  incident  to  the  activities  of  secular  pursuits  is 
no  right  at  all  unless  given  by  the  Creator.  Any  person  or 
class  of  persons,  it  may  be  conceded,  has  the  right  to  cease  from 
such  pursuits  as  often  and  as  long  as  they  desire.  But  where 
does  any  one  get  the  right  to  demand  that  others  shall  be  legally 
restrained  from  the  usual  activities  of  life  on  any  day  unless  he 
can  show  a  divine  warrant?  Thus  the  second  ground  on  which 
the  courts  rest  the  argument  for  Sabbath  laws  must  be  given  up 
unless  God's  will  upholds  it. 

The  third  ground  stands  in  similar  need  of  Divine  support. 
It  upholds  these  laws  as  police  regulations  for  the  promotion  of 
the  public  welfare.  Public  health,  public  peace  and  public 
morals  are  said  to  be  promoted  thereby.  But  why  should  it  be 
more  unhealthy  to  labor  on  the  first  day  of  the.  week  than  on 
any  other?  Why  would  not  this  interest  be  conserved  just  as 
well  by  decreasing  the  number  of  hours  that  should  constitute 
a  day's  work?  Why  should  people  have  the  idea  that  the 
public  peace  is  disturbed  on  the  first  day  by  the  things 
that  are  done  on  all  other  days  without  thought  of 
any  such  disturbance?  Why  is  it,  unless  the  day  is  recognized 
as  holy?  Why  should  it  be  regarded  as  immoral  to  do  the  very 
things  on  the  first  day  of  the  week  which  all  agree  ought  to  be 
done  on  other  days?  No  reason  can  be  given  except  the  sacr.ed- 
ness  that  belongs  to  the  day  by  Divine  appointment. 

By  the  terms  of  the  fourth  ground  on  which  Sabbath  laws 


220  CONFLICTING  OPINIONS. 

are  sustained  the  Sabbath  is  declared  to  be  a  civil  institution^ 
and  as  such  entitled  to  legal  protection.  The  objector  may  ad- 
mit that  the  Sabbath  is  a  civil  institution,  as  things  now  are,  but 
he  denies  that  it  ought  to  be.  It  is  asserted  that  it  has  no  more 
right  to  be  a  civil  institution  than  Ash  Wednesday  or  Good  Fri- 
day. It  is  maintained  that  the  great  body  of  Christians  in  this- 
land  have  misunderstood  their  own  religion,  that  they  are  per- 
petuating a  Jewish  custom  which  was  abolished  by  Christ,  and' 
that  when  we  accept  and  practice  Christianity  as  Christ  taught  it,, 
the  Sabbath  will  cease  to  be  a  civil  institution.  Like  all  the  rest, 
this  fourth  ground  for  Sabbath  laws  must  be  abandoned  sooner 
or  later  unless  the  Sabbath  is  a  divine  institution  sustained  by 
a  divine  law  which  is  of  perpetual  obligation.  In  contending 
against  the  vandal  hosts  that  are  seeking  the  destruction  of  the 
Sabbath,  we  will  be  driven  back  from  one  position  to  another  and 
finally  driven  from  the  field  and  vanquished,  imless  we  have  the 
support  of  divine  authority.  Unless  God  is  with  us  we  might  as 
well  give  up  the  fight  at  once.  The  real  issue  then  is,  have  we 
divine  authority  for  keeping  the  first  day  of  the  week  as  the  Sab- 
bath and  for  protecting  its  observance  by  law? 

CONFLICTING  OPINIONS. 

This  is  the  principal  point  on  which  judicial  opinions  relat- 
ing to  the  Sabbath  laws  are  at  variance.  In  many  cases  the 
courts  assume  that  the  first  day  of  the  week  is  the  Sabbath  and 
that  the  Divine  authority  for  a  weekly  rest  day  is  expressed  in 
the  Fourth  Commandment.  In  a  few  instances  this  position  is 
boldly  declared  and  sustained  by  proof.  In  some  of  the  opinions 
just  considered  the  question  of  Divine  authority  for  the  rest  day 
is  evaded,  but  the  necessity  of  Divine  authority  for  the  rest  day 
statute  is  denied. 

In  at  least  one  instance,  however,  an  elaborate  argument  is 
presented  against  the  permanency  of  the  Fourth  Commandment 
and  against  any  Divine  warrant  for  a  .Sabbath  law  in  this  gospel 
dispensation.  This  was  done  by  Mr.  Justice  Read  in  Sparhawk 
V.  Union  Passenger  Railway  Company.     Mr.  Read  said: 

"I  am  aware  that  some  religious  persons  of  some  religious 
sects  think  the  sanctity  of  Sunday,  as  a  day  of  entire  rest,  is 
prescribed  to  all  nations,  and  particularly  to  all  Christians,  by 


CONFLICTING  OPINIONS.  221 

the  Fourth  Commandment  in  the  Decalogue,  but  an  attentive 
perusal  of  the  20th,  31st  and  35th  chapters  of  Exodus,  and  of  the 
5th  chapter  of  Deuteronomy,  will  show  that  this  commandment 
was  specially  limited  to  the  Jewish  nation  alone."  "This  reca- 
pitulation of  Scripture  makes  it  clear  that  the  Fourth  Command- 
ment, which  is  a  positive  statute  imposed  upon  the  Israelites 
alone,  as  a  people  separated  from  all  other  nations  by  the  Al- 
mighty for  special  and  wise  purposes,  was  not  intended  either  for 
the  Gentiles,  or  for  those  living  under  a  later  dispensation.  Like 
■circumcision,  it  was  a  sign  between  Him  and  them  only.  It  was 
a  part  of  the  ceremonial  law,  like  sacrifices,  and  not  binding  at 
any  time  on  any  nation  except  the  Jews.  .  .  . 

"The  Old  Testament  contains  moral  revealed  law,  cere- 
monial and  judicial  laws — the  two  last  being  either  typical,  or 
intended  specially  or  only  for  the  Jewish  people,  under  the  old 
dispensation,  were  terminated  by  fulfillment  or  abrogation  on  the 
coming  of  Christ,  and  the  completion  of  the  Christian  dispensa- 
tion. This  was  the  view  of  the  Apostle  Paul,  when  he  says  in  his 
epistle  to  the  Collossians,  'Blotting  out  the  handwriting  of  or- 
dinances that  was  against  us,  which  was  contrary  to  us,  and  took 
it  out  of  the  way,  nailing  it  to  his  cross;  and  having  spoiled 
principalities  and  powers,  he  made  a  shew  of  them  openly,  tri- 
umphing over  them  in  it.  Let  no  man  therefore  judge  you  in 
meat,  or  in  drink,  or  in  respect  of  an  holy  day,  or  of  the  new 
moon,  or  of  the  Sabbath  days.'  So  in  his  Epistle  to  the  Galla- 
tians,  4:9,  10  and  5  :i :  'But  now  after  that  ye  have  known  God,' 
or  rather  are  known  of  God,  how  turn  ye  again  to  the  weak  and 
"beggarly  elements,  whereunto  ye  desire  again  to  be  in  bondage? 
Ye  observe  days  and  months  and  times  and  years.'  So  in  his 
epistle  to  the  Romans  14:5 ;  'One  man  esteemeth  one  day  above 
another;  another  esteemeth  every  day  alike.  Let  every  man  be 
fully  persuaded  in  his  own  mind.  He  lliat  regardeth  the  day  re- 
gardeth  it  unto  the  Lord;  and  he  that  regardeth  not  the  day, 
to  the  Lord  he  doth  not  regard  it.'  And  in  the  preceding  chap- 
ter, 9th  verse,  the  Apostle  says,  'For  this,  thou  shalt  not  commit 
adultery,  Thou  shalt  not  kill,  thou  shalt  not  steal,  thou  shalt  not 
bear  false  witness,  Thou  shalt  not  covet ;  and  if  there  be  any  other 
commandment,  it  is  briefly  comprehended  in  this  saying.  Thou 
shalt  love  thy  neighbor  as  thyself.' 

"It  is  evident  from  these  texts  that  the  Apostle  did  not  re- 
gard the  Fourth  Commandment  as  a  part  of  the  moral  revealed 
law,  but  as  a  ceremonial  or  judicial  law  which  was  terminated  by 
the  coming  of  our  Saviour  and  the  completion  of  the  Christian 
dispensation.  ...  "I  am  deeply  impressed  with  the  necessity 
of  a  proper  observance  of  Sunday  as  a  day  of  worship  and  prayer, 
and  of  rest  from  labor;  but  living  under  the  new  dispensation. 


2  22  THE  SABBATH  BEFORE  MOSES. 

and  not  under  the  old  dispensation,  I  feel  no  inclination  to  turn 
the  Lord's  day  into  a  Jewish  Sabbath."     (54  Pa.  401,  1867.) 

It  might  be  regarded  as  a  sufficient  reply  to  this  argument 
to  quote  again  the  opinions  of  those  courts  which  have  main- 
tained the  divine  authority  for  the  Sabbath,  especially  that  opin- 
ion of  the  Supreme  Court  of  New  York  in  which  the  Scriptural 
argument  is  given.  But  there  is  no  case  in  which  the  ground 
canvassed  by  Judge  Read  is  covered  by  a  contrary  opinion.  His 
fallacious  reasoning  will  have  more  weight  with  many  people 
than  all  the  contrary  opinions  of  civil  courts.  Moreover,  his  op- 
inion but  rehearses  the  opinions  of  many  who  deny  the  perpetuity 
of  the  Sabbath,  and  who  consequently  oppose  all  Sabbath  laws.. 

THK  SABBATH  BHKORT^  MOSES. 

Mr.  Justice  Read  assumes  that  the  Sabbath  was  first  insti- 
tuted  when  the  law  was  promulgated  at  Mt.  Sinai.  This  is  an 
erroneous  assumption.  It  was  instituted  at  the  time  of  the  cre- 
ation. "God  blessed  the  seventh  day  and  hallowed  it;  because 
that  in  it  he  rested  from  all  his  work  which  God  had  created  and 
made."     (Gen.  2 :3.) 

The  Israelites  were  reminded  of  the  Sabbath  and  their  duty 
to  keep  it  before  they  reached  Sinai.  No  manna  was  given  on 
that  day  because  it  was  to  be  a  solemn  rest  unto  Jehovah.  (Ex. 
16:23-30.) 

The  custom  of  dividing  time  into  periods  of  seven  days 
known  to  have  existed  in  many  nations  cannot  be  explained  sat- 
isfactorily if  we  close  our  eyes  to  the  fact  that  this  custom  ex- 
isted from  the  beginning  by  Divine  appointment. 

MOSES    AND    THE    EOURTH    COMMANDMENT. 

The  position  of  Mr.  Justice  Read  is  that  the  Fourth  Com- 
mandment was  given  to  the  Jews  alone,  that  it  belonged  to  the 
Ceremonial  or  Judicial  Code,  and  that  it  was  not  intended  for 
any  people  except  the  Jews. 

But  this  commandment  was  given  precisely  as  those  against 
murder,  stealing,  lying  and  other  sins  were  given.  Were  these 
other  commandments  binding  only  on  the  Jews? 

This  commandment  along  with  the    other    nine    was    an- 


THE  SABBA  TH  A  SIGN.  223 

nounccd  with  an  audible  voice  by  God  from  the  smoking  summit 
of  Mt.  Sinai.  If  it  was  only  a  ceremonial  law  belonging  in  the 
same  class  with  the  laws  relating  to  sacrifices,  purifications  and 
other  ceremonies,  how  comes  it  that  God  thus  associated  it  with 
the  moral  code? 

This  conmmandment  along  with  the  other  nine  was  written 
with  God's  own  finger  on  a  table  of  stone.  No  merely  ceremon- 
ial law  was  so  written.  If  Judge  Read  and  others  who  agree 
with  him  are  correct,  they  are  wiser  than  God  and  can  improve 
on  His  arrangement  of  His  own  law. 

It  is  true  that  the  Sabbath  sustained  relations  to  the  cere- 
monial law.  Twice  as  many  sacrifices  were  to  be  offered  on 
that  day  as  on  other  df^ys.  It  was  the  day  on  which  the  new 
supply  of  show-bread  was  placed  upon  the  table  in  the  Holy 
place.     But  the  law  itself  was  moral,  not  ceremonial. 

It  is  true  the  Sabbath  law  was  incorporated  in  the  Hebrew 
judicial  or  civil  code.  But  so  were  the  laws  against  profanity, 
murder,  stealing  and  other  immoralities.  Are  they  all  therefore 
abrogated?  Are  we  free  from  all  the  moral  requirements  of  the 
Hebrew  civil  code  because  we  are  not  Jews? 

THE  SABBATH   A   SIGN. 

Reliance  is  placed  on  the  Bible  texts  which  declare  the  Sab- 
bath to  be  a  sign  between  God  and  Israel.  It  is  inferred  that 
no  other  people  should  have  this  sign ;  that  its  meaning  as  a  sign 
is  obscured  if  they  do. 

But  did  God  choose  and  separate  Israel  and  make  them  dif- 
ferent from  other  nations  on  the  principle  that  no  others  ought 
to  be  what  He  aimed  to  make  them?  Was  it  not  the  divine  pur- 
pose to  make  them  different  from  what  others  were,  though  they 
all  should  have  been  just  what  he  aimed  to  make  them?  Was 
not,  and  is  not.  Sabbath  keeping  a  sign  whereby  a  people  always 
indicate  their  attitude  toward  God  and  His  law?  Is  there  a  high 
state  of  morals  in  any  nation  where  the  Sabbath  is  not  kept? 

PAUL  AND  THE  SABBATH. 

The  texts  quoted  by  Mr.  Justice  Read  from  the  Epistles  of 
Paul  are  often  used  for  the  same  purpose  by  others.     They  cer- 


224  THE  FOURTH  COMMANDMENT  AND  THE  SABBATH. 

tainly  teach  that  a  change  has  been  introduced,  that  something 
has  been  abrogated.  But  is' it  the  Fourth  Commandment?  This 
commandment  is  not  mentioned  nor  referred  to.  Careful  and 
discriminating  Bible  students  will  note  this.  It  is  well  known 
that  Paul  had  many  a  sharp  controversy  with  Judaizers.  They 
-aimed  to  observe  the  entire  ceremonial  law,  and  taught  its  ne- 
cessity in  order  to  salvation.  Paul  denied  their  contention.  He 
pronounced  it  unnecessary  servitude.  He  issued  a  declaration 
of  independence  from  such  bondage.  He  declared  it  optional 
with  Christians  whether  they  observe  Jewish  customs.  Among 
these  customs  were  circumcision,  the  observance  of  the  new 
moons,  the  keeping  of  the  Jewish  Sabbath.  Already  Christians 
were  observing  the  first  day  of  the  week,  not  yet  called  the  Sab- 
bath but  the  Lord's  day.  To  have  called  it  the  Sabbath  then 
would  have  made  confusion.  Many  Jewish  converts  kept  both 
the  first  and  the  seventh  days  of  the  week,  and  taught  the  neces- 
sity of  so  doing.  Paul  declares  in  terms  that  no  Jew  could  mis- 
understand that  it  was  not  necessary  to  keep  the  Jewish  Sabbath. 
But  this  does  not  deny  the  authority  of  the  Fourth  Command- 
ment. Christians  were  obeying  it  by  observing  the  first  day  of 
the  week. 

THE   FOURTH    COMM.A.NDMENT   AND   THE   SABBATH. 

The  great  mistake  made  by  some  people  is  in  holding  that 
the  Fourth  Commandment  fixes  the  Sabbath  unalterably  upon 
the  seventh  day  of  the  week.  According  to  this  theory  the  aboli- 
tion of  the  seventh  day  Sabbath  is  the  abolition  of  the  Fourth 
•Commandment.  Those  who  hold  this  theory  and  believe  the 
Fourth  Commandment  to  be  still  binding  have  great  difBculty 
with  Paul's  words,  "Let  no  man  therefore  judge  you  in  meat, 
or  in  drink,  or  in  respect  of  a  feast  day  or  a  new  moon  or  a  Sab- 
bath day."  (Col.  2  :i6.)  Mr.  Justice  Read  and  some  others  take 
these  words  to  mean  a  complete  abolition  of  the  Sabbath  because 
they  hold  that  no  day  of  the  week  except  the  seventh  can  possibly 
be  a  Sabbath.  The  truth  is,  the  Fourth  Commandment  does  not 
fix  the  Sabbath  upon  any  day.  It  only  declares  that  one  day  in 
seven  shall  be  kept  holy.  That  day  is  to  be  the  seventh  after 
six  of  labor,  which  it  will  be,  no  matter  on  which  day  of  the  seven 
it  may  chance  to  occur.     The  particular  day  is  determined  else- 


IHE  MORAL  LA  W  NOT  REPEALED  225 

where.  The  principle  is  eternaUy  estabHshed  1)}-  the  Fourth 
precept  of  the  Decalop^ue.  No  change  would  be  needed  in  the 
language  of  this  precept  whether  the  Sabbath  should  fall  on  the 
third,  the  fourth,  or  any  other  day  of  the  week. 

THK    MORAL,    L,  \\V    NOT    RF.PK  XT.^D. 

The  theory  is  held  by  many  that  the  entire  law  has  been  re- 
pealed by  the  coming  and  work  of  Christ  and  that  as  a  conse- 
quence the  Fourth  Commandment  is  no  longer  in  force.  On 
this  theory  it  follows  that  nothing  but  human  authority  pre- 
scribes the  keeping  of  the  first  day  of  the  week.  Certain  state- 
ments by  Paul  are  quoted  to  sustain  the  theory,  such  as  these : 
■"We  are  not  under  law  but  under  grace;"  K.omans  6:14;  "Christ 
IS  the  end  of  the  law  for  righteousness  to  every  one  that  be- 
lieveth,"  Romans  10:4.  But  it  is  sometimes  forgotten  that  in 
answer  to  the  question,  "Do  we  make  void  the  law  through 
faith?"  Paul  said,  "Nay,  but  we  establish  the  law."  Romans  3: 
21. 

It  should  be  remembered  that  Paul  was  antagonizing  the 
theory  of  certain  Jews  "who  being  ignorant  of  God's  righteous- 
ness, and  seeking  to  establish  their  own,"  "did  not  subject  them- 
•selves  to  the  righteousness  of  God."  Romans  10:3.  Paul's  ob- 
ject is  to  show  that  saving  righteousness  is  obtained,  not  by  the 
deeds  of  the  law,  but  by  faith  in  Christ.  He  seeks  to  put  the  law 
in  its  proper  place  and  to  point  out  its  proper  use  so  as  to  guard 
against  its  being  put  in  the  place  of  the  free  grace  of  God.  Its 
use  is  to  convict  of  sin,  to  be  our  schoolmaster  to  bring  to  Christ. 
The  use  of  the  plough  is  not  abrogated  by  a  declaration  that  it 
cannot  take  the  place  of  a  reaping  or  a  theshing  machine,  but  a 
step  is  taken  in  defining  its  proper  use. 

THE  REPEAL  AND  REENACTMENT  THEORY. 

Passing  now  from  the  opinion  of  Mr.  Justice  Read  it  may 
"be  well  to  notice  the  dangerous  theory  held  by  some  to  the  ef- 
fect that  the  entire  law  was  repealed  by  Christ  and  so  much  of  it 
reenacted  as  is  now  necessary  to  guide  the  lives  of  Christians. 
Some  who  hold  this  view  maintain  that  the  Fourth  Command- 
ment has  been  reenacted  by  the  institution  of  the  Lord's  day, 


226  CHRIST  AND  THE  SABBATH. 

while  others  deny  any  such  reenactment.  On  this  matter  the 
following  quotation  is  pertinent : 

"There  has  been  a  good  deal  of  well  meant  but  loosely  ex- 
pressed statement  about  reenactment  of  more  or  les^  of  the  Dec- 
alogue in  the  New  Testament.  For  instance,  a  prominent  pas- 
tor, studious  and  devout  (Sunday  School  Times,  of  Philadelphia, 
January  14,  1882,),  says  of  the  Fourth:  'It  happens  to  be  the 
only  one  of  the  ten  which  is  not  repeated  nor  reenacted  in  set 
terms  in  the  new  Testam.ent.'  Now  repetition  is  one  thing,  re- 
enactment  is  another.  There  are  plain  enough  reasons  why  the 
Fourth  was  not  repeated.  But  when  were  any  of  them  reen- 
acted? Reenactment  means  an  explicit,  formal  restatement  of 
the  binding  authority  of  the  law  as  such.  Our  Lord  never  made 
such  a  statement.  He  and  His  hearers  alike  took  it  for  granted 
that  every  one  of  the  ten  was  a  living  law.  He  expounded  and 
applied  them.  He  never  professed  to  add  to  their  authority. 
He  never  rehearsed  them  as  a  whole.  He  never  catalogued 
them.  He  never  repeated  nine,  omitting  one.  There  is  not  one 
line  in  the  New  Testament  which  implies  that  the  Decalogue  is 
not  a  unit,  whole,  inseparable."  (Eight  studies  on  the  Lord's 
day.     Note,  pp.  260,  261.) 

One  form  of  this  theory  looks  for  proof  to  H.  Cor.  3:7-11 : 
"If  the  ministration  of  death,  written  and  engraven  in  stones, 
was  glorious  :  .  .  .  how  shall  not  the  ministration  of  the  Spirit 
be  rather  glorious?  .  .•  .  for  if  that  which  is  done  away  was  glori- 
ous, much  more  that  which  reniaineth  is  glorious."*  It  is  as- 
sumed that  it  is  the  moral  law  that  is  done  away.  But  how  does 
this  harmonize  with  the  theory  of  reenactment?  Paul  is  con- 
trasting, not  the  Gospel  with  the  law  as  such,  but  the  new  dis- 
pensation with  the  old.  The  old  dispensation  has  passed  awav, 
but  it  had  permanent  elements  which  passed  over  into  the  new. 
The  moral  law  is  one  of  those  permanent  elements. 

CHRIST  AND  THE  SABBATH. 

There  may  be  different  views  as  to  the  seeming  silence  of 
our  Lord  and  the  writers  of  the  New  Testamnet  concerningf  the 


*  "Ought  Christians  to  Iceep  the  Sabbath."     By  R.  A.  Torrey,  p.  2u. 


CHRIST  AND  THE  SABBATH.  227 

permanency  of  the  Fourth  Commandment.  It  ma>  be  suffici- 
ent to  call  attention  to  certain  well  known  facts.  The  Jews  were 
very  profane  and  our  Lord  repeats  the  command  against  pro- 
fanity. They  evaded  the  command  that  requires  children  to 
honor  their  parents,  and  He  reproves  them  for  their  sin.  They 
misinterpreted  the  Sixth  Commandment  so  as  to  narrow  its 
scope,  and  He  shows  them  that  even  anger  is  a  violation  of  this 
precept.  They  were  given  to  violations  of  the  Seventh  Com- 
mandment, and  He  shows  them  the  spiritual  nature  of  it.  They 
were  guilty  of  robbery  in  various  ways  and  He  reproves  them. 
They  were  great  liars,  and  He  denounces  them  for  their  sin. 
They  were  covetous,  and  He  opens  up  their  hearts  to  their  sight 
that  they  may  see  how  corrupt  they  are.  But  as  to  the  Fourth 
Conmiandment  they  erred  on  the  side  of  punctiliousness.  In  the 
case  of  the  other  precepts  of  the  Decalogue  they  gave  loose  in- 
terpretations and  sought  devices  for  evading  their  requirements. 
But  in  the  case  of  the  Fourth  they  even  added  many  require- 
ments of  their  own  and  pronoimced  judgment  on  Christ  for  not 
complying  with  them.  We  protest  against  the  custom  of  re- 
garding Christ  as  an  advocate  of  looseness  in  Sabbath  keeping 
because  He  reproved  the  Jews  for  their  strictness  and  found  it 
unnecessary  in  specific  terms  to  reiterate  this  precept. 

But  the  supposed  silence  of  the  New  Testament  concerning 
this  precept  is  more  seeming  than  real.  The  continuance  of  a 
law  may  be  recognized  and  enjoined  by  the  enjoining  of  duties 
which  cannot  be  performed  otherwise.  Does  Christianity  en- 
join any  duties  which  cannot  be  performed  as  intended  by  the 
Divine  Head  of  the  Church  if  the  Sabbath  is  abolished?  Some- 
thing is  implied  in  the  very  word,  "Church.''  It  involves  the 
idea  of  a  public  congregation,  an  assembly  for  worship.  Such 
an  assembly  can  be  held  with  regularity,  and  all  its  members  can 
be  free  to  attend,  only  by  having  a  day  set  apart,  free  from 
worldly  business  and  labor  and  pleasure  seeking.  That  such  as- 
semblies will  be  held  is  supposed  as  a  matter  of  course  by  every 
line  of  the  New  Testament.  It  is  plainly  taught  by  the  example 
of  the  Apostles  and  their  disciples  in  forming  congregations  and 
establishing  ordinances  of  public  worship.  It  is  made  manda- 
tory by  the  authoritative  word  of  an  inspired  writer.  "Not  for- 
saking the  assembling  of  vourselves  together  as  the  manner  of 


228  PERMANENCY  OE  THE  SABBATH. 

some  is,  Init  exhorting  one  another ;  and  so  much  the  more  as 
ye  see  the  day  approaching.''     (Heb.   10:25.) 

It  is  pertinent  to  inquire  in  this  connection  whether  it  is 
wrong  to  neglect  the  supposed  Christian  obhgations  noted 
above.  Where  there  is  no  law  there  is  no  transgression.  If  there 
is  no  law  requiring  the  observance  of  the  Sabbath  there  is  no 
sin  in  not  observing  it.  If  there  is  no  sin  in  not  observing  it 
tliere  is  no  sin  in  neglecting  public  and  private  worship  on  that 
dav.  If  there  is  no  sin  in  neglecting  theSe  Christian  ordinances 
there  is  no  sin  in  neglecting  a  profession  of  religion.  In  truth, 
Sabbath  keeping  involves  all  Christian  duty.  The  denial  of  its  ob- 
ligation is  the  denial  of  all  Christian  duty. 

Sabbath  observance  is  founded  in  the  very  nature  of  our  re- 
liation  to  our  Creator.  Our  relation  is  one  of  absolute  depend- 
ence. The  obligation  growing  out  of  that  relation  is  service,  in- 
cluding worship  and  good  works.  The  abolition  of  the  Sabbath 
is  the  denial,  of  that  relationship  and  the  refusal  to  render  the 
required  service. 

PERMANKNCV   OF  THE  SABBATH. 

Our  Lord  said,  "Think  not  that  I  came  to  destroy  the  law 
or  the  prophets :  I  came  not  to  destroy,  but  to  fulfill.  For  verily 
I  say  unto  you,  till  heaven  and  earth  pass  away,  one  jot  or  one 
title  shall  in  no  wise  pass  away  from  the  law,  till  all  things  be 
aecom.phshed."     (Matt.  5:17,  18.) 

It  is  easily  seen  how  the  ceremonial  laws  relating  to  sacri- 
fices and  purifications  have  all  been  fulfilled  in  Christ.  It  is 
easily  seen,  too,  how  the  civil  stattttes  which  were  peculiar  to  Is- 
rael have  served  their  purpose  and  were  fulfilled  when  Israel  had 
finished  her  mission  in  preparing  the  way  for  Christ.  But  no 
one  has  yet  shown  that  there  has  been  any  fulfillment  of  the  Sab- 
bath law.  It  points  backward  to  God's  rest  when  He  had  fin- 
ished the  work  of  creation.  It  also  points  forward  to  the  rest 
that  remains  for  the  people  of  God.  It  will  not  be  fulfilled  till 
we  enter  into  that  rest. 

THK   NAME  AND  THE  DAY. 

Ih  law  the  terms  "Sabbath,"  "Lord's  day"  and  "Sunday"  are 


THE  NAME  AM)  THE  DA  Y.  229 

regarded  as  synonymous,  being  merely  designations  of  the  first 
day  of  the  week.  These  terms  are  all  freely  employed  in  our 
statutes  and  judicial  opinions.  There  are  some  people,  however, 
who  refuse  to  apply  the  term  "Sabbath*'  to  the  first  day  of  the 
week.  It  is  easy  to  understand  this  refusal  on  the  part  of  those 
who  hold  that  the  Seventh  day  of  the  week  is  the  Sabbath  and 
has  not  been  and  never  can  be  changed.  It  is  easy  to  under- 
stand it  in  the  case  of  those  who  deny  that  we  now  have  a  Sab- 
bath. It  is  impossible  to  understand  it  in  the  case  of  those  who 
believe  that  the  Fourth  Commandment  is  still  binding  and  that 
the  first  day  of  the  week  is  now  to  be  observed  as  a  day  of  rest 
instead  of  the  seventh.  It  is  no  part  of  the  object  of  this  discus- 
sion to  present  the  evidence  that  tlie  first  day  of  the  week  is  the 
New  Testament  Sabbath.  But  the  following  outline  is  here  sub- 
mitted. 

(i)  The  example  of  cur  Lord  in  appearing  to  His  disciples 
after  His  resurrection  on  the  first  day  of  the  week.  Luke  24:36; 
John  20:19-29. 

(2)  The  gift  of  the  Holy  Spirit  on  the  first  day  of  the  week. 
Acts  2:1-4. 

(3)  The  Christian  custom  of  meeting  for  worship  on  the 
first  day  of  the  week.     Acts  20:7;  i  Cor.   15:2. 

(4)  The  testimony  of  the  Fathers  that  this  was  the  cus- 
tom. (Ignatius,  A.  D.,  100;  Barnabas,  Justin  Martyr,  A.  D., 
138;  Melito,  A.  D.,  170;  Irenaeus.  A.  D..  [78;  Clement  of  Alex- 
andria, A.  D.,  194;  Origen,  A.  D.,  200.) 

(5)  The  nanie  "Sabbath"  was  transferred  to  the  first  day  of 
the  week.  Eusebius  declares  that  by  keeping  the  Lord's  day 
holy  we  keep  the  festival  of  the  Sabbath. 

Since  the  term  "Sabbath"  means  "'rest''  or  "cessation,"  and 
since  there  must  be  rest  or  cessation  from  secular  pursuits  to  the 
end  that  men  may  meet  for  worship,  it  is  a  most  suitable  name  for 
the  rest  da}-. 

CONCLUSIONS. 

1.  The  character  of  our  Sabbath  laws  is  better  than  many 
people  have  thought. 

2.  Modern  tendencies  are  not  all  awav  from  the  Sabbath 


230  CONCLUSI'.NS 

of  the  Bible ;  some  States  haye  recently  improved  their  laws,  and 
some  of  the  recent  judicial  opinions  are  among  the  best. 

3.  In  more  than  half  the  States  the  laws  need  to  be 
strengthened  by  extending  the  prohibitory  clauses,  reducing  the 
number  of  exceptions  or  increasing  the  penalty ;  in  some  cases 
one,  in  others  two.  in  others  all  three  of  these  things  should  be 
done. 

4.  There  is  need  of  a  campaign  of  education  because  of  the 
prevalence  of  Sabbath  desecration,  not  only  by  worldly  people, 
but  also  by  church  members.  The  time  has  come  for  judgment 
to  begin  at  the  house  of  God. 

5.  Legislative  bodies  need  constant  watching  lest  they  de- 
stroy existing  legal  safeguards  of  the  Sabbath. 

6.  The  civil  comts  can  generally  be  relied  upon  to  main- 
tain the  law ;  some  of  the  best  things  said  in  defense  of  the  Sab- 
bath have  been  said  by  the  courts.  A  certain  class  of  attorneys 
who  are  reluctant  to  take  cases  involving  the  question  of  Sabbath 
breaking  unless  it  be  to  defend  the  criminal,  should  study  these 
great  cases  and  learn  what  is  the  real  basis  of  national  greatness. 

7.  The  principle  that  the  Sabbath  law  is  still  binding  in- 
volves the  principle  that  it  is  binding  upon  nations  and  govern- 
ments. Both  State  and  national  governments  are  under  obliga- 
tion to  obey  the  law  as  well  as  to  enact  laws  against  the  desecra- 
tion of  the  Sabbath  by  the  people. 

8.  By  the  making  of  contracts  for  the  carrying  of  the  mails 
on  the  Lord's  day  and  the  employment  of  thousands  of  men  to 
handle  the  mails,  the  United  States  Government  is  the  chief  vio- 
lator of  the  Sabbath  law. 

9.  Both  State  and  United  States  Courts  have  gone  beyond 
the  provisions  of  any  written  constitution  in  maintaining  Sab- 
bath laws ;  this  is  especially  the  case  in  opinions  declaring  that 
the  law  rests  upon  divine  authority. 

10.  The  Constitutions  of  the  several  states  and  the  Consti- 
tution of  the  United  States  should  be  so  amended  as  to  set  forth 
the  fact  of  divine  authority,  and  not  leave  it  for  the  courts  alone 
to  proclaim  it.  The  courts  need  a  constitutional  warrant  for 
so  doing. 

11.  The  Sabbath  question  makes  it  clear  that  a  separation 


CONOLUSIONS  231 

of  Church  and  State  does  not  mean  a  separation  of  reHgion  and 

the  State. 

12.  Sabbath  breaking  is  not  only  an  offense  against  re- 
Hgion, against  the  Church  and  against  the  Head  of  the  Church, 
but  it  is  also  a  crime  against  the  Nation  and  the  Nation's  Divine 
Ruler,  in  that  it  is  an  assault  upon  an  institution  that  has  done 
more  than  any  other  to  advance  our  civilization,  is  inwrought 
into  the  very  fiber  of  the  nation's  being,  is  a  necessary  condition 
of  our  free  institutions,  and  cannot  be  abolished  without  produc- 
ing moral,  religious  and  political  chaos. 

13.  Our  free  government  v/o'dd  be  impossible  without  our 
Christian  civilization ;  our  civilization  is  produced  and  perpetu- 
ated bv  the  Christian  religion;  the  Christian  religion  cannot  exist 
without  the  Christian  church ;  the  Christian  church  would 
lanquish  and  die  without  assemblies  for  public  worship ;  assem- 
blies for  worship  are  impossible  without  a  day  of  rest ;  a  day  of 
rest  needs  the  protection  of  statute  law ;  the  statute  law  should 
rest  upon  a  constitutional  provision ;  the  constitutional  provision 
should  rest  upon  and  acknowledge  the  authority  of  God. 


232 


INDEX. 


Onl)^  the  most  important 
occur  frequently  in  the  text. 

Agriculture,   Department   of.  185 

Alabama,   Sabbath   law  of.  .  .  89 
Opinions  of  Courts   of. .   90 

Alaska,   Sabbath  law  of 175 

Amusements,  Prohibition  of, 
on  the  Sabbath,  23,  32,  35, 
43,    45,    59,    103,    107,    111,   . 
113,  127,  128,  148,  153,  156, 
157.  160,  163,  165,  176 

Arizona.  No  Sabbath  law  in. .166 

Arkansas,  Sabbath  law  of...   28 
Opinions  of  Courts  of..   30 

Army,  Regulations  relating 
to    the 177 

Athletic  sports  on  the  Sab- 
bath forbidden.  41,  57,  141, 
155,    158 

Barbering.  Prohibition  of,  on 
the  Sabbath,  31,  49,  53, 
60,  79,  80,  84,  92,  107,  108, 
....120,  144,  149,  154,  163,  165 

Base  ball,  Prohibition  of,  on 
the  Sabbath,  10.  16,  29,  41, 
50,  57,  59,  64,  65,  125,  155 

Basis  of  Sabbath  laws,  129, 
133,  148,  153,  155,  156, 
194,   196,  218 

Benefits  of  Sabbath  laws,  18, 
47,  75,  79,  85,  86,  108,  109, 
123,  128,  133,  148,  153.  155, 
156.    187 

Business  on  the  Sabbath, 
Prohibition  of.  (See  laws 
of   the    different   States.) 

California,     History     of     the 
Sabbath  law  of. 
Enactment   of  the   law....  167 
Declared    unconstitutional.  167 
Judge       Field's     dissenting 

opinion     169 

The   law   re-enacted 170 

The    law    constitutional, 

170,    171 


references  are  given  when  topics 


Enactment  of  a  new  law..  171 
Bakers'     rest     day     clause 

unconstitutional    172 

Remainder  of  the  law  con- 
stitutional      173 

Repeal  of  the  law 174 

Rest  day  law  enacted 174 

Campmeetings,        Admission 
fees    to    on    the    Sabbath 

unlawful     79 

Cases  quoted  in  this  volume, 

Alabama. 

(iotton  V.  Huey  &  Co 91 

Frolickstein  v.   Mayor  of 

Mobile     90 

Hooper   v.    Edwards 91 

Manning  v.    Klein 92 

O'Donnell   et  al,  v.   Swe- 

ney     91 

Sloss  Iron  and  Steel  Co. 

V.    Harvey 92 

Wadsworth   v.    Dunnan..   92 

Arkansas. 

Cleary  v.  State 30 

Marre    v.    State 31 

Petty   V.    State 31 

Scales    V.    State 31 

Shover  v.   State 30" 

Stewart  v.    Davis 31 

State   V.    Frederick 31 

Stockton   V.   State 30 

Tucker  v.   West  et  al .  .  .   31 

California. 

Ex  parte  Andrews     170 

Ex  parte  Bird     171 

Ex  parte   Burke    173 

Ex  parte   Newman     169 

Ex  parte  Westfield     ....172 

Colorado. 

Cordillo   V.   People 147 

Heinssen   v.    State 147 

Huffsmith   v.    People 147 

MuUer  v.   People 147 


INDEX 


233. 


Schwed  V  Hartwitz 147 

Connecticut. 

Avery  v.   Stewart 34 

Finney   v.    Donahue 34 

Grant   v.    McGrath 34 

State   V.   Miller 34 

Tyler   v.   Waddington.  .  .  34 
Delaware. 

Hull  V.   State 35 

Spahn  V.  Williams 35 

Terry   v.   Piatt 35 

Georgia. 

Bass    V.    Irwin 7 

Gunn   V.    State 8 

Hennington  v.   State....     8 

Hussey   v.    State 8 

Karwisch   v.    Mayor   and 
Council    of    Atlanta...     7 

Neal   et  al  v.   Crew 6 

Salter  et  al.  v.   Smith...     7 
Weldon  et  al  v.  Colquitt, 

Governor    7 

Illinois. 

Collins  Ice  Cream  Co.  v. 

Stephens     153 

Eden    V.    People 149 

Johnston   v.    People 150 

Koop    V.    People 150 

Langabier  v.  P.  F.  &  N. 

R.    R.    Co 151 

McPherson  v.  Village  of 

Chebanse     148 

Richmond  v.   Moore 151 

Indiana. 

Bennett  v.  N.  A.  &  C.  R. 

R.   Co 15 

Carver    v.    State 13 

Catlett  V.  Trustees  of  M. 

E.    Church    16 

Davis    V.    Barker 15 

Dugan   V.    State 16 

Foltz    V.    State 12 

Johns  V.   State 12 

Mueller  v.   State 13 

Perkins  v.  Jones 15 

Reynolds  v.  Stevenson..    14 
State  V.  Hogreiver 16 


Yonoski   et  al.  v  State..   14 
Iowa. 

Davis   V.    Fish 37 

First    M.    E.    Church    v. 

Donnell     40 

Gross  V.   Miller 39 

Gunderson     v.     Richard- 
son        37 

Pike    V.    King 37 

Sayer  v.  Wheeler 37 

State  V.   Sherwood 38 

Tingle  V.   C.  B.  &  Q.  R. 

R.    Co 38 

Kansas. 

City  of  Topeka  v  Hemp- 
stead       41 

Kansas   City  v.  Orr 41 

Kentucky. 

Commonwealth    v.    L.    & 

N.    R.    R.    Co 95 

Dahoney    etc.  v.Dahoney  94 
L.    &    N.    R.    R.    Co.    V. 

Commonwealth    95 

Moore   v    Hagan 94 

Ormsby  v.   City  of  Lou- 
isville      94 

Ray     etc.     v.     Catlett     & 

Buck    93 

Slade    V.    Arnold 94 

Louisiana. 

City     of     Shreveport     v. 

Levy    97 

State    v.    Fernandez 99 

State   V.    Gelpi 99 

State    ex    rel.    Walker    & 

Merz    V.    Judge 97 

Maine. 

Meader   v.    White 43 

Towle    V.    Larabee 42 

Maryland. 

Haack  v.  Knights  of  Lib- 
erty       48 

Judefind  v.   State 46 

Kilgour  V.  Miles  &  Gold- 
smith       45 

P.  W.  &  B.  R.  R.  Co.  V. 
Lehman    &    Brother.  ..   47 


234 


INDEX 


Thomasson    v.    State....    11 

Vogelsong  v.    State 11 

Massachusetts. 

Bucher    v.    Fitchburg    R. 

R.    Co 105 

Bucher    v.     Cheshire     R. 

R.  Co 106 

Clapp  V.   Hale 105 

Commonwealth  v.   Has.. 102 
Commonwealth  v.  Knox.103 

Cranson  v.   Gross 105 

Flagg   V.    Inhabitants    of 

Millburv     104 

Geer   v.    Putnam 104 

Pattee    v.    Putnam 105 

Robson   V.    French 105 

Stephens  v.  Wood 105 

Stewart   v.   Thayer 105 

Michigan. 

Allen  V.   Duffie 51 

Hall   V.    Parker 52 

People  V.    Bellet 49 

Scongale   v.    Sweet 50 

Tucker  v.  Mowry 50 

Turnverein    Soc.    v.    Car- 
ter        51 

Minnesota, 

Handy  v.  St.  Paul  Globe 

Pub.    Co 110 

Opsahl   V.  Judd 110 

State   V.    Ludwig 108 

State    V.    Petit 108 

Ward  V.  Ward 110 

Mississippi. 

Block    V.    McMurry 112 

Kountz  V.   Price  et  al...ll2 

Miller   v.   Linch 112 

Telegraph     Co.     v.     Mc- 

Laurin    113 

Missouri.  - 

City  of  St.  Joseph  v.  El- 
liott       56 

Ex   parte  Joseoh   Neet..   57 

Kaufman  v.   Hamm 57 

More   V.    Clymer 57 

Roberts   v.    Barnes 57 

Rosenblatt  v.  Townsley.   57 


State  V.  Ambs     54 

State  V.  Granneman     ....   55 

State  V.  Green    57 

State  V.  Gullette     57 

St.  Louis  Agr'l  Assoc,  v. 
Delana     57 

Nebraska. 

Deere    v.    Hodges 156 

Horacek  v.    Keebler 155 

Johnson   v.    M.   P.    R.   R. 

Co. 156 

Liberman   v.    State 156 

Martin  v.   State 156 

Merchants  Nat'l  Bank  of 

Omaha   v.   Jafifray 156 

Post   V.    Garrow 156 

State  V.  O'Rourk     155 

State  v.i  King     156 

New  Hampshire. 

Allen    V.    Deming 159 

Chenette   v.   Teehan 161 

Clough   V.   Shepard' 159 

Corey   v.    Bath 160 

George   v.    George 161 

Jameson    v.    Carpenter. ..  161 

Smith    V.    Foster 160 

Woodman   v.    Hubbard..  160 

New  Jersey. 

State  V.  Williams 116 

VanRiper  v.   VanRiper .  .115 

New   York. 

Batsford    v.    Every 120 

Camrbell  v.   Internation- 
al Life  Assurance  Soc. 

of   London    120 

Lindenmuller  v.   People. .121 
Koster   v.    Board   of   Po- 
lice      126 

Menendorff  v.   People...  125 

O'Shea   V.    Kohn 126 

People  V.  Buttling     126 

People  V.  Dennin    125 

People  V.  Havnor    126 

People  V.  Moses     125 

People  V.  Ruggles     120 

North   Carolina. 

Branch    v.    W.    &   W.    R. 


INDEX 


235 


R.  Co 19 

Melvin    v.    Easly 19 

Sloan    V.    Williford 19 

State  V.  Williams 18 

North  Dakota. 

People  V.  Odell 59 

Ohio. 

Bloom   V.    Richards 60 

McGatrick  v.   Mason 62 

Hastings   v.    Columbus..  66 

Nagle    V.    Brown 66 

Shufflin  V.  Columbus....  66 

State  V.  Goode    ct    al....  65 

State  V.  Powell    63 

Oregon. 

Ex  parte  Tice    164 

Wachsmuth   v.   Rmitl'ge.  164 

Pennsylvania. 

Baker  v.  Commonwealth  79 
Com.  V.   Berks   Co.   Pris- 
on  Warden    81 

Com.  V.   Burry 80 

Com.  V.  Eyer 76 

Com.    V.    Fields 81 

Com.  V.   Fulton 81 

Com.  V.  Funk     79 

Com.  V.  Houston     79 

Com.  V.   Linaugh 80 

Com.  V.  Martin     79 

Com.  V.  Matthews     79 

Com  V.    Nesbit 76 

■      Com.  V.  Rees    79 

Com.  V.  Teaman 79 

Com.  V.  Waldman     79 

Com.  V.  Weidner     79 

Com.  V.  Wolf    71 

.Dale   V.    Kni^p 79 

iTiedchom    v.  Com 79 

Johnston   v.   Com 74 

Mahoney   v.    Cook 75 

Omit  V.   Com 75 

Sparhawk  v.   Union   Pas- 
senger   Ry    Co 77 

Snecht  v.    Com 71 

Splane   v.    Com 79 

Rhode   Island. 

Allen  V.   Gardiner 21 


Baldwin    v.    Barney 22 

Brown    v.    Browning....   22 
Pepin    V.    Soc.    St.    Jean 

Baptiste     22 

Sayles  v.  Welllman 21 

Smith  V.   Rollins 21 

Whelden  v.   Campbell...  21 

South  Carolina. 

City  Council  of  Charles- 
ton  V.    Benjamin 25 

Hellams   v.   Abercrombie  27 
Town  Council  of  Colum- 
bia   V.    Duke    &    Marks  25 

Tennessee. 

Amis  V.   Kyle 87 

I.reyer  v.    State 86 

Knoxville      v.      Kno.wile 

Water  Co 87 

Mayor     of     Nashville   v. 

Linch    85 

Parker   v.   State 87 

Texas. 

Albrecht   v.    State 130 

Eisner   v.    State 130 

Ex  parte   Sundstrom  .  .  .  .  130 
Gable   v.    Houston 128 

Utah. 

State  V.  Souher 88 

Vermont. 

Adams   v.    Gay 133 

Durham  v.   Ins.   Co 135 

Lyon   V.   Strong 133 

Virginia. 

N.    &   W.    R.    R.    Co.    V. 
Commonwealth    137 

Washington. 

Alain    v.    Johnson 165 

Nelson  v.   Pyramid   Har- 
bor Packing  Co 165 

State   V.   Keech 165 

Tacoma  v.   Krech 165 

West  Virginia. 

State   V.    B.    &   O.    R.    R. 

Co 139 

State  V.   Knight 140 

Wisconsin. 
Alexander     v.     Town   of 


236 


INDEX 


Oshkosh    141 

Knoulton    v.     Milwaukee 

City    Ry.    Co ..142 

Melchoir  v.  McCarty .  . .  141 
Porter  et  al  v.  Sanders"nl41 
Sutton  V.  Town  of 

Wauwatosa     141 

Trowert  v.  Decker 142 

State  V.  Knight 141 

United  States  District  Courts. 

In    re    King 191 

Swan   V.    Swan 190 

United  States  v.  World's 

Columbian   Expositi'n  193 
World's    Columbian    Ex- 
position       V.        United 

States    194 

United    States    Sup.    Court. 

Hennington   v.   State 187 

Soon  Hing  v.  Crowley..  186 
P.  W.  &  B.   R.   R.  Co  V. 
P.    &    H.    Steam    Tow- 
boat  Co 189 

State  V.   Petit 189      ' 

Church      of      the      Holy 

Trinity  v.  U.  S .210 

Charity,  Deeds  of,  on  the 
Sabbath  (See  laws  of  the 
different  States.) 
Subscriptions  and  '  collec- 
tions for  religious  pur- 
poses arc,    16,  39,  40,   51, 

79,  90,   143 

Christ    and    the    Sabbath 226 

Christianity  and  the  Com- 
mon law,  18.  25,  26,  61, 
63,    65,    75,    76,    123,    152, 

155,  173 

Church    and   State   in    the    U. 

S.    ••• 123,  152 

Cigars  and  tobacco.  Sale  of 
on  the  Sabbath,  13,  14, 
....44,  79,  100,  108,  117,  118 
Civil  institution,  The  Sab- 
bath is  a,  7,  61,  72,  85, 
103,  108,  124,  126.  '  13o! 
169,   171,  206 


Classification  of  States... 4,  196- 

Colonies,  Sabbath  laws  of 
the    1,       2 

Colorado,  Sabbath  law  of...  145 
Opinions  of  courts  of 147 

Common  law  and  the  Sab- 
bath      209 

Concerts,    Sun.,   32,  49,    100,   126 

Confectionery,  Sale  of,  44, 
108,    118 

Congress,  Acts  of,  relating 
to    the    Sabbath 179 

Connecticut,  Sabbath  law  of.   31 
Opinions   of   court  of 33 

Conscience,  Rights  of,  ..72, 
74,  75,  123,  124,  130,  161,  173 

Constitutionality  of  Sabbath 
Laws, 

Meaning   of   the   term 215- 

Opinions  of  courts  relating 
to,  6,  11,  18,  25,  61,65,  71, 
85,  86,  90,  97,  102,  108, 
120,  122,  125,  128,  133, 
167,   170,   199,  20s 

Continental    Sunday,    The... 214 

Contracts  made  on  the  Sab- 
bath, 14,  15.  19,  21,  22, 
31,  35,  37,  38,  42,  43,  50, 
52,  61,  65,  87,  90,  91,  94, 
105,  112,  115,  120,  131, 
132,  134,  139,  141,  146, 
151,  153,  156,  160,  162 

Contracts  involving  work  on 
the  Sabbath,  15,  34,  62, 
63,  94,  103,  116,  120,  153, 
156,   158,   165 

Convicts  not  to  labor  on  the 
Sabbath     128 

Courts    to    observe    the    Sab- 
.      bath 7,  8,   53,   56 

Damages  for  injuries  rec'd 
on  the  Sabbath,  16,  41, 
63,  96,  105,  109.  134 

Delaware,  Sabbath  law  of...   34 
Opinions  of  courts  of 35 

Disturbance  of  Sabbath  rest, 
49,  83,  107,   117,  145,  148, 


INDEX 


237 


149,    153.    154,    158,    159, 

162,  165 

Divine  authority  for  Sabbath 
laws,    7,    25.    30,    37,    74, 

...120,   177,  210,  216 

England,  Sabbath  law  of..   1,  2, 
Exceptions     to     prohibitions 
of  Sabbath  laws. 

Bakeries 96,    100 

Baths,   Public 88,'  100 

Bookstores     96 

Charity,  Deeds  of,  (In  ev- 
ery  State.) 

Concerts    100,   101 

Drug  stores,  (In  every  State.) 

Fruit,  Sale  of 108,  118 

Hotels,     boarding     houses, 

restaurants     88 

Ice,  Delivery  and  sale  of. .  96 

Livery  Stables 88,  96,  100 

Mail,  Transportation  and 
deliver-  of  the,  5,  33,  104, 
114,    115,    127.    138,    139, 

178,    180 

Marriage  contracts   48 

Necessity    Works    of,    (In 
every  State.) 

Newspapers.    Printing    and 
distribution     of,    on    the 
Sabbath..  100,    108,    120,    143 
Newspapers,      Notices      in, 

66,  115,   141 

Observers  of  another  day, 
10,  20,  28.  37,  40,  49,  52, 
58,    100,     117,     127,     135, 

138,   143 

Processions     119 

Railroads,  92,  97,   100,   111, 

135,   138,   143 

Soda  fountains    96 

Steamboats,  28,  89,  92,  97, 

127,    138 

Theatres    97 

Tobacco    and    cigars,    Sale 

of 100,  108,  117,  118 

Trains  of  live  stock  and 
perishable   freight,  6,  47, 


136 

Travelers,   10,  66,  68,   105,   160 

Verdicts   by   juries 43,    115 

Works    necessarily   operat- 
ed continuously,  28,  88,   100 

Excursions  on  the  Sabbath, 
16,  79 

Fishing  on  the  Sabbath,  10, 
17,  35,  59,  71,  85.  107,  111, 
113,  114.  117,  125,  154 

Florida,    Sabbath    law   of 35 

Food,  Sale  of  on  the  Sab- 
bath, 36,  58,  68,  100,  107,  117 

Foot  ball    113 

Fourth  Commandment  not 
repealed    155 

Fixes  ratio  of  rest  and  la- 
bor, 26.  27,  72,,  91,  102, 
221,    223 

Games,  Gaming,  etc.,  17,  20, 
2?>,  24,  29,  31,  35,  40.  45, 
49.  59.  68,  85,  87.  100, 
102,  111,  113,  117,  119, 
127,   158 

Georgia,  Sabbath   law  of....     5 
Opinions  of  courts  of 6 

Holidays    and    the    Sabbath, 

18,  90 

The  Sabbath  not  a  holiday, 

94,  156 

The   Sabbath  classed  with, 
166,  174 

Horse  racing,  23,  29,  52,  58, 
83,  89,  107,  111,  117,  128, 
157,  162,  165 

Hunting,  6.  10,  16,  32,  35,  36, 
41,  45,  68,  71,  85,  89,  93, 
107,  111.  117,  127,  154 

Idaho.  No  Sabbath  law  in...  174 

Illinois,,   Sabbath  law  of 147- 

Opinions  of  courts  of 148 

Indiana,  Sabbath  law  of 10 

Opinions  of  courts  of 11 

Indian  Territory,  Sabbath 
law  of   176 

Injuries  received  on  the  Sab- 
bath, damages  for,  22.  38, 


23S 


INDEX 


105,  109,  116,  155 

Inteiior,  Department  of  the.  185 
Interstate      railroad      traffic, 

138, '187 

Iowa.  Sabbath  law  of 36 

Opinions  of  courts  of 37 

Jews    and    Sabbath    laws,   20, 

90,  91,  97,  98,  102 

Justice,    Department    of 178 

Kansas,  Sabbath  law  of 40 

Opinions    of   courts    of 41 

Kentucky,  Sabbath  law  of...   92 

Opinions  of  courts  of 93 

Labor  on   the   Sabbath.    (See 

laws  of  States.) 
Legislature,     Power    of    the. 

169,    171 

Liberty   and   the    Sabbath,... 

26,  47,   54,  66 

Liquor,  Legal  prohibitions  of 
sale  of.  5,  11,  17,  20,  24, 
29,  32,  42,  43,  44,  48,  52, 
53,  59.  69.  85,  88.  93,  96, 
101,  108,  111,  113,  116, 
120,  127,  136,  142,  146, 
148,  150,  154,  163,  165,  172 
Opinions  of  courts  relating 
to,   9.   10,   54,   69,   84,   85, 

88,  99,  128 

Lord's  day.  The,  6,  7,  17.  19, 
23,  25,  30,  37,  41,  44,  50, 
68,     100,     104,     120,     133, 

146,   157,  163 

Louisiana,   Sabbath   law  of .  .  96 
Opinions   of  courts   ofy. ...   97 

Mail,  U.  S 104,  114,  115 

Maine,  Sabbath  law  of 41 

Opinions  of  courts  of 42 

Maryland,   Sabbath   law  of..  44 

Opinions   of   courts   of....  45 

Massachusetts,  Sab'h  law  of.  100 

Opinions  of  courts  of 102 

Michigan,  Sabbath  law  of...  48 

Opinion   of   courts    of 49 

Military  Academy    177 

Milk.  Sale  and  delivery  of, 
2,  41,  68,  79,  158 


Minnesota,  Sabbath  law  of..  107 

Opinions  of  courts  of 10.-? 

Mississippi,  Sabbath  laws  of.  Ill 

Opinions  of  courts  of 112 

Missouri,  Sabbath  law  of 52 

Opinions  of  courts  of 54 

Montana,  Sabbath  law  of...  153 
Morality    and     the     Sabbath, 
28.  68,  77,  79,  82.  86,  91, 
103.    112.     124.     1^0.    152. 

155,   169,   170 

Moral  law.  The,  not  repealed 

225 

Navy,  Department  of  the....  184 
Nebraska,  Sabbath  law  of... 154 

Opinions  of  cou  ts  of 155 

Necessity,  Works   of  pe  mil- 
ted,   (In   all   States.) 
Works    of    defined,    13,    14, 
63,  77,  95,  104,  110,  113,  150 

Nevada.  Sabbath  law  of 157 

New      Hampshire,      Sabbath 

law  of   157 

Opinions  of  courts  of 159 

New  Jersey,  Sabbath  law  of.  113 

Opinions  of  courts  of 115 

New       Me.xico.       Sabbath       law 

of    162 

Opinions  of  courts  of 163 

New   York,   Sabbath   law  of.  117 

Opinions  of  courts  of 120 

Newspapers.  Printing  and 
sale  of  on  the  Sabbath, 
79,  94,  100,  108,  110,  120, 

163 

Newspapers,  Notices  in  on 
the   Sabbath,  66,  94.   115, 

118,  141,  147,  150 

North  Carolina,  Sabbath  law 

of   16 

Opinions  of  courts  of 18 

Ohio,  Sabbath  law  of 59 

Opinions  of  courts  of.....  60 
Oklahoma,  Sabbath  law  of.  .  67 
Oregon,    Sabbath   law  of....  163 

Opinions  of  courts  of 164 

Paul    and    the    Sabbath 223 


INDEX 


239- 


Pennsylvania,   Sabh.   law  of..  67 
Opinions  of  courts  of 71 

Police  regulations,  Sabbath 
laws  are.  8.  50.  64.  91.  98, 
109,  173.  187,  205 

Porto  Rico,  Sabbath  law  of.  143 

Post  Office  Department, Pro- 
visions  relating  to  the..  178 

Process,  etc..  Serving  on  the 
Sabbath.  11,  21,  30,  37, 
42,  49,  58,  67,  83.  85,  90, 
93.  101.  108,  115.  118,  127, 
13S,  141.  146.  157,  162, 
163,   166,   174 

Prohibitions   in   Sabbath   laws. 
Amusements.  32,  33,  44,  45, 

48,  59,  83,   107,    HI,   113, 
148,    160 

Barbering,    45.    49.    60,    84, 

. . .  .86.  92,  107,  120,  154,  164 
Base  ball....  10,  29,  59,  64,  65 

Concerts    32 

Contracts.   (Sec  Contracts,  p. 

234.) 
Dancing.... 32,  35,  41,  111,  165 
Disturbance      of      religious 

meetings    49,  58 

Excursions 5,  16,   78 

Foot  ball    23 

Fishing.   10.   17.  35,   36.  44, 

59,  71.  85,  101.  107,  113 

Gambling,   Games,  etc.,   17, 

20.  29,  35.  40.  41,  44,  48, 

49,  52,   87,    89,    100,    111, 
113,  158 

Hunting.   6,    10,    16,    17,   29, 
32.  36,  44.  45.  59,  85,  93, 
107.    Ill,    113,    126,    131,    138 
Horse    racing,    23,    24,  29, 

35,  40.   52.  87,   119,   162,   165 
Legal  writs,  etc.  (See  laws 
of  most  of  the  States.) 

Parades,   etc 114 

Quarreling 10,    59,    66 

Recreations     20 

Sale,    or    exposure    to    sale 
of    wares,    (See    laws    of 


the    States.) 
Sports.    20,    23,    41,    48.    49, 

58.  113,  117,  140 

Theatres.. 59,  88,  119,  146,  157 
Traveling 34,    lU 

Railroad  traflic  '  n  the  Sab- 
bath, 5,  8.  17.  24,  33,  47, 
69,  95.  97.   102,   111.   114, 

Religion.  I'rotcction  of,  30, 
93.  122,  130' 

Religious  liberty  and  the 
Sabbath,  25,  26,  62,  64, 
65,  72,  75.  90,  98.  117, 
131,  132,  140,  151,  152, 
169,  173 

Rhode     Island,     Sabbath    law 

of    20 

Opinions  of  courts  of 21 

Rights,  not  invaded  by  Sab- 
bath laws,  30.  53.  64.  71. 

90,   103,  200 

Protected  bv  Sabbath  laws, 
55,  74,  77,  78,  109.  131, 
133,  140,  150,  152,  155, 
159,  169,  171,  202 

Sabbath  day,  the.  First  day 
of  the  week  is,  5,  20.  23, 
28,  34.  36,  45.  52,  58,  70, 
83,  84,  94,  107,  111.  113, 
117,  131,  135,  138.  146, 
162,   167,   170 

Sabbath,  The,  a  civil  institu- 
tion. 7,  61,  65,  72,  85,  103, 

108,   124,  126 

Institution  and  permanen- 
cy of  the, 220-227 

Seventh  day,  Observers  of, 
10,  25,  28,  32,  40,  42,  49, 
52,  60,  71,  86,  100,  107, 
117,  127.  128,  136,  139, 
141,   148,   152,   154 

Soda  water,  Sale  of 44,  79 

South   Carolina,  Sabbath  law 

of    23 

Opinions  of  courts  of 25 

State,  Department  of 176 

Steamboats,    Running    of    on 


240 


INDEX 


the     Sabbath,     111,     127, 
137,  139,   148 

Street  cars  running  of  on  the 
Sabbath 78,    92 

Sunday  (See  Lord's  Day  and 
Sabbath.) 

Sunday  papers.  Publication 
and  sale  of,  68.  78,  79,  87, 
..94,  100,  110,   115,  142,  150 

Tennessee,  Sabbath  law  of..  84 
Opinions  of  courts  of 85 

Texas,  Sabbath  law  of 126 

Opinions  of  courts  of 128 

Theatrical  performances,  31, 
59  77,  88,  97,  119,  121, 
127,  157,  165,  172 

Tobacco,    (See    cigars.) 

Toll  Bridges,  etc., 10 

Traveling  on  the  Sabbath, 
10,  22,  66,  105,  113,  135,  160 

'Treasury    department 176 


Utah,  Sabbath  law  of 87 

Opinions  of  courts  of 88 

United    States,      Government 

of  the,  and  the  Sabbath.  175 
United   States   Mail   (See  Mail.) 
123,    132,    136,    139,    148.    152 
Verdicts     of     Juries     on     the 

Sabbath     115 

Vermont,   Sabbath   law  of...  132 

Opinions  of  courts  of 133 

Virginia,  Sabbath  law  of....  136 

Opinions  of  courts  of 138 

War   department    177 

Washington,  Sabbath  law  of.l64 

Opinions  of  courts  of 165 

West   Virginia,    Sabbath   law 
of  139 

Opinions  of  courts  of 139 

Wisconsin,  Sabbath  law  of..  141 

Opinions  of  courts  of 142 

Wyoming,  Sabbath  law  of..  113 


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